Hari and Others v Marikana Lesotho Long Distance Taxi Association and Others (321/04) [2005] ZANWHC 8 (1 January 2005)

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: 321/04

In the matter between:

SOLOMON

HARI FIRST APPELLANT

MISHACK

NKOMA SECOND APPELLANT

JOHN

SKALK THIRD APPELLANT

MOLEFI

MPUDI FOURTH APPELLANT

RICHARD

NTUMZELA FIFTH APPELLANT

GLEN

SETUKE SIXTH APPELLANT

ANANIAS

MATHEBULA SEVENTH APPELLANT

MOTIHANKE

EAZY TLADI EIGHTH APPELLANT

BTA

PLATINUM CHROME

TAXI

ASSOCIATION NINTH APPELLANT

and

MARIKANA

LESOTHO LONG

DISTANCE

TAXI ASSOCIATION FIRST RESPONDENT

NATHANIEL

JUPI MABALE SECOND RESPONDENT

MARTIN

GOITSEMANG THIRD RESPONDENT

DIKOBE

FRANS LETEBELE FOURTH RESPONDENT

ALFRED

MPAJU KOLE FIFTH RESPONDENT

KINGS

JOHANNES PETLELE SIXTH RESPONDENT

PHATADI

ADAM MONISI SEVENTH RESPONDENT

MPAMPA

CALR MOLOTSANE EIGHTH RESPONDENT

MONAGENG

ELIAS TSHWAGONG NINTH RESPONDENT

ERNEST

MANIKI LETSOKO TENTH RESPONDENT

FULL

BENCH APPEAL

HENDRICKS J, LANDMAN J, & GURA J

JUDGMENT

THE FULL BENCH:

A Introduction

[1] This is an appeal against a judgment by Leeuw J which interdicted the appellants from conducting “cross-border” passenger transportation and other conduct. For ease of reference we will refer to the appellants as the respondents and the respondents in the appeal as the applicants.

[2] The facts are succinctly captured by the court a quo. They can be conveniently reproduced here:

(a) The applicants are members of the Marikana Lesotho Long Distance Taxi Association (The First Applicant) and are holders of temporary permits issued to them by the Cross-Border Road Transport Agency in accordance with section 25 of the Cross-Border Road Transport Act No. 4 of 1998 (The Cross-Border Road Transport Act). They are authorised to transport passengers from the Marikana Taxi Rank through a route which goes past several towns through the Republic of South Africa\Lesotho border at the Maseru bridge crossing into Maseru and back.

(b) The respondents, in addition to their membership with the Bleskop Taxi Association, are also members of the BTA Platinum Chrome Taxi Association, but aver that it is not a universitas persona in view of the fact that they have not adopted any constitution.

(c) The respondents admit that they conduct a long distance taxi business but that unlike the applicants, they do not cross the Republic of South Africa\Lesotho border but drop off their passengers at Ladybrand.

(d) The respondents admit that they conveyed passengers from the mines in Rustenburg who intended crossing over or who were in transit to Lesotho and off-loaded them at Ladybrand, which is a short distance from the Republic of South Africa\Lesotho border.

(e) According to the respondents they were requested to provide the service by the transport committee of the Western Platinum Mine near Rustenburg. They further entered into an agreement with the Johannesburg OFS Long Distance Taxi Association (JOFELDTA) wherein they each acknowledged each other’s right to transport passengers from Rustenburg to the Republic of South Africa\Lesotho border. These passengers would be transported into Lesotho by the Lesotho taxi operators.

(f) They were conducting the Long Distance Taxi Operation on the strength of temporary permits obtained from the Department of Transport, which permits allowed or permitted them to transport passengers to the Republic of South Africa\Lesotho border.

(g) The permit issued would normally reflect the names of the passengers to be conveyed, the route and the taxi operators. The transport fee would be collected from their agent who is employed by them and uses a caravan as a place from where the money for transport is paid. The temporary permit would then be destroyed on expiry thereof.

(h) The applicants allege, in their founding papers, that the respondents are conducting cross-border road transport without being issued with valid permits and are therefore committing an offence.

(i) They further allege that the respondents have been interfering with the smooth and peaceful conduct of their taxi industry in that from the 4th September 2003, they assaulted and intimidated their members and drivers.

(j) They have off-loaded passengers from their taxis to the extent of hiring “hit men” who had been contracted to kill them. It is for these reasons that they approached this court for a temporary interdict restraining the respondents from continuing with their unlawful conduct.

(k) The respondents deny involvement in the unlawful activities levelled against them by the applicants, but aver that they conduct a long distance taxi operation and claim to have received approval for such operation from the Bleskop Taxi Association. The respondents deny conducting cross-border road transportation without a temporary permit.

[3] Mr J H F Pistor SC who appeared for the appellants and Mr C da Silva for the respondents were in agreement that in order for this court to deicide the appeal we would have to traverse:

(a) The aspect relating to cross-border road transportation which are regulated by the Cross-Border Road Transport Act, Act 4 of 1998 (hereinafter referred to as “the Act”). This is the relief contained in paragraph 1.1 of the respondents’ notice of motion.

(b) The aspect relating to assaults and interference of the respondents’ activities as taxi operators. This is the relief set out in paragraph 1.2, 1.3, 1.4 and 1.5 of respondents’ notice of motion.

(c) The question of costs.

B Cross-border road transportation

[4] Cross-border road transportation is regulated by the Cross-Border Road Transport Act 4 of 1998. Section 53(1) provides that subject to the provisions of subsection (2), the Road Transportation Act 74 of 1977 is repealed insofar as it related to cross-border transport. However, the Road Transportation Act of 1977 continues to regulate internal or non cross-border transportation.

[5] The Cross-Border Road Transport Act of 1998:

(a) is intended to address the need to improve the unimpeded flow by road freight and passengers in the region.

(b) contains a definition of “cross-border road transport”, i.e means “the transport of passengers for reward or the transport of freight to and from the Republic crossing or intending to cross its borders into the territory of another State or in transit across the Republic or in the territory of another State with a vehicle on a public road.”

(c) contains a definition of “permit” and a “temporary cross-border road transport permit” or “cabotage permit” issued in respect of a vehicle for a maximum period of 14 days authorising the transport of freight or of passengers on specified routes or cabotage, is a permit.

(d) provides for the Board of Agency which, in terms of section 23(b), regulates access to the market of the road transport freight and passengers industry in respect of cross-border road transport by issuing permits.

(e) provides that no person may undertake cross-border road transport unless he or she is the holder of a permit. See section 25(1).

(f) provides that a person who undertakes cross-border road transport without the required permit is guilty of an offence. See section 40.

[6] The National Land Transport Transition Act 22 of 2000 (the Transition Act) also contains provisions which make it clear that the Cross-Border Road Transport Act was not intended to deal with the situation where a domestic transport operator does not cross the South African borders.

[7] According to the preamble of the Transition Act the purpose of that Act is:

“To provide for the transformation and restructuring of the national land transport system of the Republic; and to provide for incidental matters.”

[8] Section 33 of the Transition Act provides (in so far as it is relevant to this appeal):

“(1) Subject to subsection (2), no person may operate a road-based public transport service without holding the necessary permit or operating licence or, in the case of a special event, a temporary permit issued in terms of section 20 of the Road Transportation Act, 1977 (Act No. 74 of 1977), or

(2) Subsection (1) does not apply to any person operating a public transport service in the circumstances contemplated in section 1(2) of the Road Transportation Act, 1977 (Act No. 74 of 1977), or a replacing provincial law, subject to section 44, or in the course of conducting-

(a) cross-border road transport on the authority of a permit granted and issued to the person in accordance with Part 6 of the Cross-Border Road Transport Act, 1998 (Act No. 4 of 1998); or

(b) . . . . .”

[9] Section 46 of the Transition Act was not brought to the attention of the court a quo. The section reads:

“(1) Where on trips involving cross-border road transport, a domestic public transport operator picks up or sets down passengers within the Republic after leaving the point of origin and before crossing the relevant international border, such operator must be in possession of the necessary operating licence or permit as required by this Act.”

(2) No one may set down passengers at or near to an international border, where it is clear that such passengers intend to cross the border into another state, unless that person is the holder of the necessary permit required by the Cross-Border Road Transport Act, 1998 (Act No. 4 of 1998).”

[10] This brings us to the crucial question. Were the respondents conducting cross-border transport? To answer this question we must establish whether they were engaging in conduct which falls properly within the definition of “cross-border transport”. The definition reads:

“Cross-border road transport” means the transport of passengers for reward or the transport of freight to or from the Republic crossing or intending to cross its borders into the territory of another state or in transit across the Republic or the territory of another state with a vehicle on a public road.”

See section 1.

It is necessary to establish whether they were transporting passengers for reward or freight to and from the Republic crossing or intending to cross its border into the territory of another State or in transit across the Republic with a vehicle on a public road.

[11] It is common cause that:

(a) The respondents carried passengers for reward from Rustenburg to Ladybrand in a vehicle on a public road;

(b) The respondents’ vehicles did not cross the borders of the Republic and did not disembark their passengers at Maseru;

(c) The passengers (or some of them) crossed over the border into Lesotho; and

(d) The respondents were in possession of permits labelled “cross-border permits” which describe the route in the permit.

[12] We agree with Mr Pistor’s submission that the factual basis for the finding by the court a quo that the respondents conducted cross border transport is to be found in the following passage of the judgment:

“….if one were to consider the manner in which the Respondents advertised themselves, the nature of the permit which referred to a cross-border permit and the fact that they transport passengers who board their taxis for the purpose of proceeding to Lesotho, it becomes evident that their permits issued in terms of the Road Transportation Act of 1977 cannot be valid under the circumstances.”

[13] The key findings which are pertinent to the question of intention are:

(a) The respondents transported passengers who board the taxis “for the purpose of proceeding to Lesotho”.

(b) The “in transit” argument.

(c) The respondents “advertised” themselves as cross-border operators.

(d) The permit issued to them: is labelled “cross-border permit”.

(i) The passenger’s intention

[14] It is clear that one of the considerations taken by the court a quo into account in holding for the applicants is that, although the respondents had not crossed the border their passengers intended to do so. But is the passenger’s intention which is relevant? This is what we must investigate.

[15] The ordinary meaning of the words “to or from” and “crossing or intending to cross” clearly mean that there must be a crossing of the borders when the transport is conducted. However, not only an actual crossing will constitute cross-border transportation within the ambit of the concept. The definition in section 1 expressly envisages that cross-border transportation also occurs where “the person conducting the transport has the intention to cross the borders”. The “crossing” or “intention to cross” must be clearly that of the taxi operator and not that of the passengers since the Act is aimed at the transport “for reward” and not at preventing the movement of passengers from one place to the other.

[16] Mr Pistor submitted that a different interpretation will result in absurdities such as:

(a) If a taxi were to convey 10 passengers of whom 2 intend to cross the borders whilst 8 and the taxi operator do not have such intention, then it cannot be said that the taxi operator was conducting “cross-border transport”.

(b) Furthermore, how is the driver to establish the intention of the passengers? The Act does not place any duty on him to establish their intention with regard to their final destination.

(c) What, for example, would be the position if the passengers would change their intention “en route”.

(d) Freight cannot form any intention, yet the same provision applies to the transportation of freight.

(e) A person who conducts cross-border transportation without a permit is guilty of an offence. (Section 40 of the Act) It could never have been the intention of the legislator to create a crime in respect of one person “acting with the intention of another”.

(f) Furthermore, it is not an offence in terms of the Act for passengers to cross the border and therefore it cannot be said that the legislator intended to prohibit any aiding of the passengers by a taxi driver.

[17] We find it unnecessary to decide this matter on the basis that an interpretation which relies on the intention of the passenger would lead to an absurdity. The meaning of the section is clear enough without resorting to the rule of interpretation which seeks to avoid giving rise to an absurdity.

(ii) The “in transit” argument

[18] The court a quo also found that:

“On their own admission, the respondents are transporting passengers who are in transit to Lesotho for reward from Rustenburg Mines to Ladybrand”.

Mr Pistor submitted that the court a quo incorrectly interpreted the words “in transit”. These words should be read in conjunction with the rest of the sentence. They are used in the context of “in transit across the Republic or the territory of another state. The term “across” in the context “to the other side” or (in Afrikaans) “dwarsoor”.

[19] We agree that it is not sufficient to be merely “in transit”. It must be “in transit across the Republic” which means, in transit from one territory to another through the Republic. The requirement relating to “in transit” relates to the person who conducts the transport and not to the passenger or freight. So a transporter would not require a cross-border permit if he or she were to transport passengers from one point in South Africa to another point in South Africa without crossing the borders of the country.

(iii) The effect of the advertisement

[20] The court a quo referred to the respondent’s advertisement. A translation of the relevant advertisement reads as follows:

“All taxis bearing this emblem costs a R100.00 to Maseru, Ficksburg, Van Rooi, etc, etc. Call the following numbers: ….for any questions”.

[21] Mr Pistor attempted to convince us that:

(a) the advertisement does not state that passengers would be transported to the stated destinations, but merely invites interested parties to call the provided telephone numbers “for any questions”.

(b) in any event the advertisement should be considered as an invitation to interested parties to make an offer and not as an offer to interested parties.

(c) the respondents’ evidence is that the passengers are dropped on the South African side of the border (mostly at Ladybrand).

(d) any interested person who contacted the telephone numbers or enquired from the person on duty at the caravan would be told that the vehicles would run up to Ladybrand only.

[22] We are satisfied that the advertisement was meant to woo patrons who wished to travel to Maseru. It reflected an intentional misrepresentation. Potential patrons were brought under the impression that the respondents would transport them to Maseru. But did the respondents have any such intention?

[23] We are of the view that the respondents did not, at the time, intend conducting cross-border transportation. This is evidenced by the fact that the respondents did not transport passengers further than Ladybrand which lies a kilometre or so from the border. They, however, knew that their target market were desirous of going to Maseru. It made their venture more attractive to say that they were transporting passengers to Maseru even though they intended going no further than Ladybrand.

(iv) The meaning of the applicant’s permit

[24] The permit issued to the applicants describes itself as a cross-border permit. But on its reverse die it permits the respondents to do only what they were doing. It does not authorise cross-border transport as is contemplated in the Cross-Border Road Transport At of 1998. The consequences of the outdated label “cross-border permit” on their permit cannot be laid at their door.

[25] It follows that the court a quo should have found that the respondents were not engaging in cross-border transport. They were engaged in internal transport and had the necessary permit.

C Unlawful physical conduct

[26] We turn to deal with that part of the order restraining the respondents from committing various unlawful acts. The applicants on the other hand applied to the court a quo for an interim interdict pending an action which they intended and have instituted against the respondents.

[27] It is unnecessary to detail the applicant’s list of complaints and the respondents’ answers. It is sufficient to state that the court a quo correctly found that there are disputes of fact which cannot be decided on the papers.

[28] The court a quo should have considered whether the applicants had, in the light of the conflict of fact, establish a prima facie right although open to some doubt for the relief they sought and whether, unless the interdict was granted, they would suffer irreparable harm. See Setlogelo v Setlogelo 1914 AD 221 at 227. The court a quo should have concluded that in the light of the serious conflict of fact that the applicants had not established a basis for an interim interdict.

[29] Instead the court a quo decided to:

“. . . take cognizance of the fact that in the industry such disputes usually turn out volatile to the detriment of the passengers and the industry as a whole. I therefore grant a final interdict in favour of the applicants”

[30] It might be so that disputes in the taxi industry are often resolved in a violent fashion. But a court is not entitled to take judicial notice of that in the present circumstances. The general situation often prevailing in an industry does not absolve a court from the obligation to decide the case before it on its own particular facts. The dispute cannot be resolved without oral evidence. An interim interdict and most certainly a final interdict should not have been granted.

[31] It follows that, in our view the final interdict should be set aside.

D Costs

[32] Both parties seek the costs of the appeal. The usual rule is to award costs to the successful party. The respondents has been successful. There is no reason to depart from the general rule. The respondents is entitled to the costs of the appeal.

[31] In the result:

1. The appeal is upheld.

2. The order of the court a quo is set aside.

3. The respondents are to pay the appellants costs of the appeal.

___

R

D HENDRICKS

JUDGE

OF THE HIGH COURT

A

A LANDMAN

SAMKELO

GURA

JUDGE OF THE HIGH COURT

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