Johannesburg Bara Qwaqwa Transport Services Taxi Association (Pty) Ltd (JBQQTA) v Gauteng Provincial Transport Regulator Entity and Others (72861/12) [2015] ZAGPPHC 974 (4 November 2015)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

DATE: 4/11/2015

CASE NO: 72861/12

In the matter between:

JOHANNESBURG BARA QWAQWA

TRANSPORT SERVICES TAXI

ASSOCIATION (PTY) LTD (JBQQTA) APPLICANT

and

THE GAUTENG PROVINCIAL TRANSPORT

REGULATOR ENTITY 1st RESPONDANT

THE MEC FOR THE DEPARTMENT OF ROADS

AND TRANSPORT OF GAUTENG 2nd RESPONDENT

THE MEC FOR THE DEPARTMENT OF

COMMUNITY SAFETY, GAUTENG 3rd RESPONDENT

CITY OF JOHANNESBURG 4th RESPONDENT

JOHANNESBURG MINIBUS

TAXI ASSOCIATION 5th RESPONDENT

FORMER REGISTRAR OF TRANSPORT

FOR GAUTENG PROVINCE, PETER DLAMINI 6th RESPONDENT

FORMER CHAIRPERSON OF THE GAUTENG

PUBLIC PASSENGER APPEAL BOARD

7th RESPONDENT

J U D G M E N T

KUBUSHI, J

[1] Before me there was an interlocutory application by the fifth respondent, (the application). In the application the fifth respondent sought three orders, namely, an order declaring the review application filed by the applicant, abandoned and dismissed; an order

discharging the rule nisi issued in respect of the review application on 15 January 2013 and an order that the applicant pay the costs of the application on a punitive scale of attorney and own client. There were seven respondents cited in the review application.

[2] The application was filed in court on 24 June 2015 and served on the applicant on 25 June 2015. On the date on which the application was set down for hearing, that is, on 12 August 2015, the matter was postponed sine die and the costs thereof reserved. I am informed by the parties that the application was postponed on the basis that the fifth respondent be afforded an opportunity to serve the application upon the other respondents to the proceedings who have an interest in the matter and to afford the applicant an opportunity to file its papers in opposition to the application.

[3] At the time of the hearing of the application, on 12 August 2015, the applicant had filed its notice to oppose the application. The notice to oppose was filed with the registrar on 6 August 2015 and the opposing affidavit was not filed. There was no service on the fifth respondent or any of the other respondents. At the hearing of the application on 23 October 2015 the applicant's counsel explained that the applicant's notice to oppose or its opposing affidavit could not be served on the fifth respondent because the address provided by the correspondent attorneys of the fifth respondent in its papers did not exist and, as such, the applicant was unable to effect personal service at the address provided. On enquiry by me, counsel was unable to explain why service was not affected by registered mail.

[4] As already stated the application was re-enrolled for hearing on 23 October 2015. At the time of set down, the application by the fifth respondent had been duly served upon all the respondents and filed in court on 26 August 2015. There was no papers filed by the applicant and the matter was enrolled on the unopposed roll.

[5] On 20 October 2015, two days before the hearing of the application, the applicant filed and served on all the respondents a 'notice of counter application in the interlocutory application of the fifth respondent'. Attached to such a notice was 'the applicant's answering affidavit in the interlocutory application of the fifth respondent and applicant's founding affidavit in the interlocutory application to compel first, second, sixth and seventh respondents'. As per this answering affidavit, the applicant sought an order to compel the first, second, sixth and seventh respondents to furnish it with the record of the proceedings of the hearing and the appeal, in respect thereto, where the decision being reviewed was taken.

[6] When the matter served before me on 23 October 2015 in the unopposed motion court, all the parties, except the seventh respondent, were legally represented. The applicant's counsel sought an order removing the matter from the unopposed roll for hearing in the opposed motion court since, according to him, the matter had become opposed. The fifth respondent's counsel opposed such removal contending that the matter should be heard on the unopposed roll because firstly, the applicant had filed and served its opposing papers out of time and did not apply for condonation; secondly, the counter application was misconceived because the applicant waited for almost two years before it could request to be provided with the record of the proceedings it wanted to review and that this amounted to an abuse of the court process. The applicant's counsel conceded that the counter application was not for hearing on that day since it would be premature and submitted that there was, however, no need for the applicant to ask for condonation because the applicant, was on 12 August 2015, afforded an opportunity to file its opposing papers.

[7] The main issue which required my determination was whether the applicant's opposing papers were filed out of time, and if so,

whether the applicant should have applied for condonation. If I find that the application was out of time it means that the applicant

ought to have applied for condonation. In that event, it follows that the matter should be heard in the unopposed motion court since the matter will then not be opposed. However, if I find otherwise, it means that the matter must be removed from the unopposed motion court roll for hearing in the opposed motion court.

[8] It is my view that when a matter is postponed to afford a party thereto an opportunity to file its papers and there are no specific

timeframes set, it follows that the time periods set for such proceedings in the uniform rules of court must be followed.

[9] In this instance, the interlocutory application was served on the applicant on 11 June 2015. In terms of the application, the applicant should have notified the fifth respondent's attorneys' of record of its intention to oppose the application in writing on or before 19 June 2015 and within fifteen days thereafter to serve and file its answering affidavit, if any. It means that the applicant should have served and filed its answering affidavit on or before 15 July 2015. As it is known, on 12 August 2015 when the matter was before court the papers had not been filed. When the applicant was given time to file its papers it was supposed to have followed the time frames set out in the uniform rules of court.

[10] During argument, counsel for the applicant changed his stance and submitted that if I should find that the papers were out of time, that that time was only four days, and is, thus, not prejudicial to the fifth respondent. Counsel, as such, requests that I should postpone the matter further and allow the applicant an opportunity to file its application for condonation and offered to pay the wasted costs for such postponement. The fifth respondent's counsel did not dispute the time of four days as put forward by the applicant's counsel but contended that the applicant should not be afforded another postponement. The fifth respondent's counsel on this point;was supported by counsel for the other respondents who were also vehemently opposed to any postponement and aligned themselves with all the arguments raised by the fifth respondent's counsel.

[11] I seem to be in agreement with the respondents' counsel on this point. My view is that this matter must be considered in its totality rather in a piecemeal fashion. It is common cause that the review application was launched by the applicant in December 2012. The application was heard on 15 January 2013. On that day, a rule nisi was issued pending the determination of the application for the relief sought by the applicant. It is the fifth respondent's case

that from that day the applicant did nothing to finalise the matter. It was only when the fifth respondent applied to have the matter declared abandoned that the applicant sought to be provided with the record of proceedings. For almost three years the applicant has shown no interest in the matter and the case has been lying dormant and unattended. When the fifth respondent filed the application, the applicant did not file its opposing papers. The explanation that the address of the fifth respondent's correspondent attorneys was non-existent is lame to say the least. If the applicant could not effect personal service it should have sent the papers by registered mail and if same were not received, such failure to serve would fall on the fifth respondent's doorstep because that was the address it provided. Still, the applicant was granted an opportunity to file its papers and it waited to file only two days before the hearing of the matter and then only because the fifth respondent has re-enrolled the matter for hearing. The applicant was served the notice of re-enrolment on 9 September 2015. It did nothing and waited to file two days before the hearing of the matter. It is my view that the conduct of the applicant smacks of nothing but delaying tactics. There is no indication of it intending to proceed with this matter.

[12] The applicant waited almost three years before it could request to be provided with the record of the proceedings for the review, then, also when the fifth respondent applied for the dismissal of the review application. Applicant's counsel argued that the first,

second, sixth, and seventh respondents were responsible for filing the record and since they had not done so, they should be held

liable. I do not agree. The same process the applicant is embarking on now should have been done long time ago. Applicant should have been aware before the passage of two years that the respondents have not filed the record and approached court to compel them to do so. The court order of 15 January 2013 was granted on an urgent basis but the momentum of the urgency was not kept once the applicant was granted the order it sought.

[13] My conclusion therefore is that the applicant's opposing papers were filed and served out of time. The applicant should have applied for condonation. Having not done so it means the matter is unopposed and should be heard in the unopposed motion court. Even though the time lapse is only four days, however, the inordinate delay it took for the applicant to act in this matter and for the matter to be finalised, is inexcusable and the respondents are seriously prejudiced thereby. The prejudice cannot be cured by a cost order. The review application stands to be dismissed for want of prosecution.

[14] I am informed by the fourth respondent's counsel that the applicant will be prejudiced by the dismissal of the review application because it will have nowhere to operate its taxis from. I, however, do not think that the other respondents should be held at ransom by that especially the fifth respondent. In order to cure the prejudice, I have to make an order directing the applicant to operate from the officially designated taxi rank at the Baragwanath Taxi Rank which is a taxi rank from where the applicant operated its taxis before the rule nisi of 15 January 2015 was issued. If, for whatever reason, that taxi rank is no longer available, the fourth respondent should be ordered to allocate another suitable taxi rank from where the applicant will operate its taxis, within 30 days from date of this order.

[15] The fifth respondent is praying for a punitive cost order against the applicant on the grounds of abuse of court process. The granting of costs is in my discretion and I do not think that this case warrants payment of costs on a punitive scale.

I make this order -

(a) The rule nisi issued on 15 January 2013 is discharged.

(b) The review application is declared abandoned and dismissed.

(c) The applicant is ordered to pay the first, second, third, fourth, fifth and sixth respondents' costs of this application on a party and party costs including the reserved costs of 12 August 2015.

(d) The applicant is ordered to operate its taxis from the officially allocated taxi rank in the Baragwanath Taxi Rank, if that taxi rank is no longer available for whatever reason, the fourth respondent is ordered to allocate another suitable taxi rank where the applicant will operate its taxis from within 30 days from date of this order.

_________________________

E.M. KUBUSHI

JUDGE OF THE HIGH COURT

APPEARANCES

HEARD ON THE : 23 OCTOBER 2015

DATE OF JUDGMENT : 04 NOVEMBER 2015

APPLICANT'S COUNSEL : MR: H.J POTGIETER

APPLICANT'S ATTORNEY : H.J GROENEWALD ATTORNEYS

1,2,3,4&6th RESPONDENTS' COUNSEL : MR: P. MANAKA

1,2,3,4&6th RESPONDENTS' ATTORNEY :STATE ATTORNEYS

4th RESPOND ENT'S COUNSEL : ADV: M.C. MAKGATHO

4th RESPONDENT'S ATTORNEY :PRINCE MUDAU ATTORNEYS

5th RESPONDENT'S COUNSEL ADV: M.J MASHAVHA

5th RESPONDENT'S ATTORNEY :F.Z NZAMA ATTORNEYS