Johannesburg Bara Qwaqwa Transport Services Taxi Association v Gauteng Provincial Transport and Others (72861/12) [2016] ZAGPPHC 233 (24 February 2016)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 72861/12

DATE: 24 FEBRUARY 2016

In the matter between:

JOHANNESBURG BARA QWAQWA TRANSPORT SERVICES TAXI

ASSOCIATION (PTY) LTD (JBQQTA)..........................................................................APPLICANT

And

THE GAUTENG PROVINCIAL TRANSPORT

REGULATOR ENTITY............................................................................................1st RESPONDENT

THE MEC FOR THE DEPARTMENT OF ROADS AND TRANSPORT

OF GAUTENG.........................................................................................................2nd RESPONDENT

THE MEC FOR COMMUNITY SAFETY, GAUTENG......................................3rd RESPONDENT

CITY OF JOHANNESBURG.................................................................................4™ RESPONDENT

JOHANNESBURG MINIBUS TAXI ASSOCIATION........................................5™ RESPONDENT

FORMER REGISTRAR OF TRANSPORT FOR GAUTENG PROVINCE,

PETER DLAMINI...................................................................................................6™ RESPONDENT

FORMER CHAIRPERSON OF THE GAUTENG PUBLIC PASSENGER

APPEAL BOARD.....................................................................................................7th RESPONDENT

JUDGMENT

KUBUSHI, J

[1] The applicant is applying for leave to appeal to a full court of this Division, alternatively the Supreme Court of Appeal, against the whole of the judgment and order I handed down on 4 November 2015.

[2] When the parties appeared before me to argue the application, there was no appearance or representation on behalf of the 5th respondent. On the day I was to deliver the judgment in respect of the application for leave to appeal, the 5th respondent's counsel made his appearance. Per agreement between the parties the 5th respondent was allowed to file heads of argument which I would consider before I deliver judgment. The 5th respondent’s counsel has since provided me with the heads of argument and I have considered the heads for purposes of this

judgment.

[3] In the notice of application the applicant raised comprehensive grounds of appeal. However, before me, the applicant's counsel argued only what he referred to as pertinent grounds.

[4] The crux of the issue in this application for leave to appeal is, in my view, whether at the time the main application served before me it was opposed or not. I found in that regard as follows:

“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.”

[5] The applicant’s submission is that at the time of considering the matter the application was opposed because at that time the counter application was already launched. Once the counter application was filed the matter became opposed and should have been directed to the opposed court, so it was argued.

[6] Leave to appeal may only be given where the judge or judges concerned are of the opinion that the appeal would have a reasonable prospect of success (section 17 of the Superior Courts Act).

[7] I am, thus, of the opinion that on the ground, as stated in paragraph [5] of this judgment, another court might come to a different conclusion as such the appeal has a reasonable prospect of success. Leave to appeal ought to be granted.

[8] In the circumstances, I make the following order:

1. The applicant is granted leave to appeal to the Full Court of the Gauteng Division of the High Court, Pretoria, against the whole of the judgment and order granted on 4 November 2015.

2. Costs are cost in the appeal.

E.M. KUBUSRI

JUDGE OF THE HIGH COURT

APPEARANCES

HEARD ON THE

: 07 DECEMBER 2015

DATE OF JUDGMENT

: 24 FEBRUARY 2016

APPLICANTS COUNSEL

; ADV J G RAUTENBACH, SC

APPLICANT’S ATTORNEY

: H.J GROENEWALD ATTORNEYS

1.2.3, 6 & 7* RESPONDENTS' COUNSEL : MR D MTSHWENI

1.2.3, 6&701 RESPONDENTS* ATTORNEY :STATE ATTORNEYS 4m RESPOND ENT’S COUNSEL : ADV M.C. MAKGATHO

4™ RESPONDENTS ATTORNEY : PRINCE MUDAU ATTORNEYS

5™ RESPONDENT’S ATTORNEYS : F.Z NZAMA ATTORNEYS

5™ RESPONDENT’S COUNSEL : ADV M J MASHAVHA

IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)

JOHANNESBURG BARA QWAQWA TRANSPORT SERVICES

TAXI ASSOCIATION (PTY) LTD (“JBQQTA)

Applicant

AND

THE GAUTENG PROVINCIAL TRANSPORT REGULATORY

ENTITY

First respondent

THE MEC FOR THE DEPARTMENT OF ROADS AND

TRANSPORT GAUTENG

Second respondent

THE MEC FOR COMMUNITY SAFETY GAUTENG

PROVINCE

Third respondent

THE CITY OF JOHANNESBURG

Fourth respondent

JOHANNESBURG MINIBUS TAXI ASSOCIATION Fifth respondent

FORMER REGISTRAR OF TRANSPORT FOR

GAUTENG PROVINCE: PETER DLAMINI

Sixth respondent

FORMER CHAIRPERSON OF THE GAUTENG PUBLIC

PASSENGER APPEAL BOARD

Seventh respondent

FILING SHEET DOCUMENTS FILED: FIFTH RESPONDENT’S HEADS OF ARGUMENT

Signed at Johannesburg on this the day of February 2016.

ATTORNEYS Fifth Respondent’s Attorneys

c/o M.L. KEKANA Inc. 303 Helen Joseph Street

Sammy Marks Square PRETORIA

Tel: (011)331-2256 Fax: (Oil) 331-2257

Ref: Ms Nzama

TO: THE REGISTRAR OF GAUTENG HIGH COURT DIVISION (PRETORIA)

AND TO:

H.J GROENEWALD ATTORNEYS APPLICANT’S ATTORNEYS

656 Alouette Street Elardus Park PRETORIA

P.O.BOX 8334, PRETORIA 0001

Tel: (012) 345-3966

Fax: (012) 345-4591

Email: hettie@Potaroup.co.2a

Ref:

ATTORNEYS FOR THE 1*t, 2nd 6th AND 7™ RESPONDENTS STATE ATTORNEY

Salu Building

316 Thabo Sehume Street

Cnr Thabo Sehume and Francis Baard Streets

Private Bag X 91

PRETORIA 0001

Ref: 10313/2012/Z79

Tel: (012) 309 1630

Fax:(012) 309 1649/50 /086 1

Enq: PA MANAGA

CITY OF JOHANNESBURG, GAUTENG

ATTORNEY FOR THE FOURTH RESPONDENT

Prince Madau & Associates (PM Attorneys)

c/o Matshego Ramagaga Attorneys

2nd Floor, Nedbank Building

200 Pretorius Street

PRETORIA

Tel: (012) 079 6442

Fax: (086) 695 0882