Mafikeng Johannesburg Transport Association v Tsholo and others (626/02) [2003] ZANWHC 9 (14 March 2003)

CASE NO : 626/02

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

MAFIKENG JOHANNESBURG

TRANSPORT ASSOCIATION APPLICANT

and

J TSHOLO 1ST RESPONDENT

T J BUTHELEZI 2ND RESPONDENT

A T QEBISA 3RD RESPONDENT

THEMBILE THWANE 4TH RESPONDENT

ELIAS MAIMANE 5TH RESPONDENT

ISAAC MOKOWE 6TH RESPONDENT

ROBERT DISENYENG 7TH RESPONDENT

ISAAC DIUTLWILENG 8TH RESPONDENT

T H MERAFE 9TH RESPONDENT

T NKATLO 10TH RESPONDENT

P BAEPANE 11TH RESPONDENT

D M MOKAILA 12TH RESPONDENT

A MOLELEKANG 13TH RESPONDENT

S H MONTSHIOA 14TH RESPONDENT

GERT MELEKO MOKGOSI 15TH RESPONDENT

JOHANNES MOSELLE 16TH RESPONDENT

JACK FISH 17TH RESPONDENT

SEUN LETSOMO 18TH RESPONDENT

ALL OTHER PERSONS ASSOCIATED WITH THE RESPONDENTS WHO DO NOT HOLD PERMITS OR VALID CERTIFICATES TO TRANSPORT OF PASSENGERS ON THE JOHANNESBURG / MAFIKENG ROUTE 19TH RESPONDENT MMABATHO FOR THE APPLICANT: N GUTTA FOR THE RESPONDENTS : C J SWIEGELAAR DATE OF HEARING: 13 FEBRUARY 2003 DATE OF JUDGMENT : 14 MARCH 2003 JUDGMENT LEEUW J: The Applicant, an unincorporated association whose members operate a mini-bus taxi service between Johannesburg and Mafikeng, has brought an Application to this Court on an urgent basis for an order in the following terms: “1 THAT the forms and services provided for in the Rules of this Honourable Court be dispensed with and that the matter be treated as an urgent application in terms of Rule 6(12). THAT a Rule Nisi do issue, returnable on Thursday, the 12th day of December 2002 at 10h00 or so soon thereafter as counsel may be heard calling upon the Respondents to show cause, if any, why:

ALL OTHER PERSONS ASSOCIATED WITH THE

RESPONDENTS WHO DO NOT HOLD PERMITS OR

VALID CERTIFICATES TO TRANSPORT OF PASSENGERS

ON THE JOHANNESBURG / MAFIKENG ROUTE 19TH RESPONDENT

MMABATHO

FOR THE APPLICANT: N GUTTA

FOR THE RESPONDENTS : C J SWIEGELAAR

DATE OF HEARING: 13 FEBRUARY 2003

DATE OF JUDGMENT : 14 MARCH 2003

JUDGMENT

LEEUW J:

The Applicant, an unincorporated association whose members operate a mini-bus taxi service between Johannesburg and Mafikeng, has brought an Application to this Court on an urgent basis for an order in the following terms:

“1 THAT the forms and services provided for in the Rules of this Honourable Court be dispensed with and that the matter be treated as an urgent application in terms of Rule 6(12).

THAT a Rule Nisi do issue, returnable on Thursday, the 12th day of December 2002 at 10h00 or so soon thereafter as counsel may be heard calling upon the Respondents to show cause, if any, why:

2.1 the Respondents should not be interdicted from entering the rank of the Applicant situated at the Mafikeng Taxi and Bus Terminal between Victoria and Hatchard Street, Mafikeng (hereinafter referred to as the Mafikeng Rank); 2.2 The Respondents should not be interdicted from intimidating, harassing or in any way interfering with the conduct of the normal taxi business by the members of the Applicant; 0. THAT the relief referred to in paragraph 2.1 and 2.2 above operate forthwith as an interim order pending the outcome of this application; That service of this application and the order be served on the Respondents as follows: 4.1 personal service by the Sheriff, alternatively and in the event of personal service not being possible, then service by the Sheriff by: 4.1.1 reading out the Notice of Motion loudly at the Mafikeng Taxi and Bus Terminal between Victoria and Hatchard Street, Mafikeng; 4.1.2 affixing of the application on a lamp pole inside the Mafikeng Taxi and Bus Terminal between Hatchard and Victoria Street, Mafikeng. THAT the Respondents be ordered to pay the costs of this application, jointly and severally, the one paying the others to be absolved.”

2.1 the Respondents should not be interdicted from entering the rank of the Applicant situated at the Mafikeng Taxi and Bus Terminal between Victoria and Hatchard Street, Mafikeng (hereinafter referred to as the Mafikeng Rank);

2.2 The Respondents should not be interdicted from intimidating, harassing or in any way interfering with the conduct of the normal taxi business by the members of the Applicant;

0. THAT the relief referred to in paragraph 2.1 and 2.2 above operate forthwith as an interim order pending the outcome of this application;

That service of this application and the order be served on the Respondents as follows:

4.1 personal service by the Sheriff, alternatively and in the event of personal service not being possible, then service by the Sheriff by:

4.1.1 reading out the Notice of Motion loudly at the Mafikeng Taxi and Bus Terminal between Victoria and Hatchard Street, Mafikeng;

4.1.2 affixing of the application on a lamp pole inside the Mafikeng Taxi and Bus Terminal between Hatchard and Victoria Street, Mafikeng.

THAT the Respondents be ordered to pay the costs of this application, jointly and severally, the one paying the others to be absolved.”

It is alleged that: 2.1 The Applicant is an association registered in terms of the Gauteng Public Passenger Road Transport Act, Act No 7 of 2001; 2.2 Golly Mokoena is duly authorized to depose to the affidavit on behalf of the Applicant by a special resolution passed by the executive committee on the 16th October 2002; 3. This application is about the events that took place on the 2nd December 2002 at the taxi rank of Mafikeng, wherein the members of the Applicant who profess to possess the necessary permits and/or licences to convey passengers from Mafikeng to Johannesburg and back, were allegedly disturbed and their right to trade in their business interfered with by the Respondents who do not have the necessary documentation that allows them to convey passengers as aforesaid. It is alleged that: (a) The Respondents conveyed passengers from the Mafikeng taxi rank; (b) When the Applicant’s members restrained the Eighteen Respondents from conveying the passengers, the Eighth Respondent conveyed a full load of passengers and left for Johannesburg; He was arrested by Traffic Officers in Lichtenburg for conveying passengers for reward without the necessary permit and was given a fine therefor;

It is alleged that:

2.1 The Applicant is an association registered in terms of the Gauteng Public Passenger Road Transport Act, Act No 7 of 2001;

2.2 Golly Mokoena is duly authorized to depose to the affidavit on behalf of the Applicant by a special resolution passed by the executive committee on the 16th October 2002;

3. This application is about the events that took place on the 2nd December 2002 at the taxi rank of Mafikeng, wherein the members of the Applicant who profess to possess the necessary permits and/or licences to convey passengers from Mafikeng to Johannesburg and back, were allegedly disturbed and their right to trade in their business interfered with by the Respondents who do not have the necessary documentation that allows them to convey passengers as aforesaid. It is alleged that:

(a) The Respondents conveyed passengers from the Mafikeng taxi rank;

(b) When the Applicant’s members restrained the Eighteen Respondents from conveying the passengers, the Eighth Respondent conveyed a full load of passengers and left for Johannesburg; He was arrested by Traffic Officers in Lichtenburg for conveying passengers for reward without the necessary permit and was given a fine therefor;

(c) because of the confrontation between Applicant’s members and the Respondents, the intervention of the Conflict Resolution Section of the Department of Transport was sought but to no avail; (d) The Respondents did not only convey passengers illegally but also stopped passengers from boarding taxis of the Applicant’s members; (e) they, Respondents and in particular the Eighth Respondent, assaulted one member of Applicant, Mr Sam Mogoiwa and followed him to the Police Station when he went to report the assault; (f) The interferences, threats and intimidation of the Applicant’s members and passengers continued for the whole day on the 2nd December 2002, making it impossible for Applicant’s members to smoothly operate their taxi business; (g) This interference and disturbance had occurred at the Mafikeng-Johannesburg Taxi Rank in Johannesburg for which an interdict was granted in favour of the Applicant by the Witwatersrand Local Division on the 18th October 2002; In response to the Applicant’s allegations, the Respondents took the following points in limine:

(c) because of the confrontation between Applicant’s members and the Respondents, the intervention of the Conflict Resolution Section of the Department of Transport was sought but to no avail;

(d) The Respondents did not only convey passengers illegally but also stopped passengers from boarding taxis of the Applicant’s members;

(e) they, Respondents and in particular the Eighth Respondent, assaulted one member of Applicant, Mr Sam Mogoiwa and followed him to the Police Station when he went to report the assault;

(f) The interferences, threats and intimidation of the Applicant’s members and passengers continued for the whole day on the 2nd December 2002, making it impossible for Applicant’s members to smoothly operate their taxi business;

(g) This interference and disturbance had occurred at the Mafikeng-Johannesburg Taxi Rank in Johannesburg for which an interdict was granted in favour of the Applicant by the Witwatersrand Local Division on the 18th October 2002;

In response to the Applicant’s allegations, the Respondents took the following points in limine:

(a) That the Applicants ought to have joined the Executive Council of the Department of Transport, the Operating Licencing Board and the Registrar of the Minibus Taxi Industry, all of the North West Province, as parties who have a “direct and substantial interest in the subject matter of the present proceedings”; (b) That the Applicant has no locus standi in iudicio in that it is not registered in the North West as an association as contemplated in Section 1 of the National Land Transport Transition Act; and (c) That Mokoena does not have the necessary authority to lodge the application on behalf of the Applicant because the special

resolution of the 16th October 2002 by the Applicant’s Executive Committee, which allegedly authorized him to depose to the founding affidavit, dealt with a completely different issue which had nothing to do with the events of the 2nd December 2002. 5. On the merits of the application, the Respondents stated the following: (a) that they are not holders of licences or permits authorizing them to transport passengers for reward from Mafikeng taxi rank to Johannesburg and back; (b) that Applicant members do not hold valid permits and/or certificates to transport passengers from the Mafikeng to Johannesburg route except for Messrs P G Lerolle and A K Tawana, who are properly licenced to do so but are not members of the Applicant;

(a) That the Applicants ought to have joined the Executive Council of the Department of Transport, the Operating Licencing Board and the Registrar of the Minibus Taxi Industry, all of the North West Province, as parties who have a “direct and substantial interest in the subject matter of the present proceedings”;

(b) That the Applicant has no locus standi in iudicio in that it is not registered in the North West as an association as contemplated in Section 1 of the National Land Transport Transition Act; and

(c) That Mokoena does not have the necessary authority to lodge the application on behalf of the Applicant because the special

resolution of the 16th October 2002 by the Applicant’s Executive Committee, which allegedly authorized him to depose to the founding affidavit, dealt with a completely different issue which had nothing to do with the events of the 2nd December 2002.

5. On the merits of the application, the Respondents stated the following:

(a) that they are not holders of licences or permits authorizing them to transport passengers for reward from Mafikeng taxi rank to Johannesburg and back;

(b) that Applicant members do not hold valid permits and/or certificates to transport passengers from the Mafikeng to Johannesburg route except for Messrs P G Lerolle and A K Tawana, who are properly licenced to do so but are not members of the Applicant;

(c) that the Second to the Eighteenth Respondents have applied for membership of the Mafikeng, Mmabatho, Montshiwa Taxi Association (MMTA) and have been accepted as members pending the outcome of their application for temporary road carrier permits to the Local Transportation Board of the North West, permitting them to transport passengers commencing from Mafikeng and proceeding to Johannesburg; (d) The First to Eighteenth Respondents admit that they conveyed passengers from the Mafikeng Taxi Rank on the 2nd December 2002 proceeding to Johannesburg and that the Eighth Respondent received a traffic fine of R1000-00 at Lichtenburg for conveying passengers for reward without a permit; (e) They deny that they were causing any disturbance at the taxi rank or that they were assaulting the commuters and the members of the Applicant; and (f) that the Applicant or its members have not established a clear right to convey passengers from Mafikeng taxi rank to Johannesburg because they are not holders of operating licences and/or permits and also that they (applicant or its members) have no right to prevent Respondents from conveying passengers from the Mafikeng taxi rank to Johannesburg. It is essential to refer to the relevant statutes in order to establish whether the Applicants are entitled to an order restraining the Respondents from entering the Mafikeng Taxi and Bus Terminus for the purpose of conveying passengers for reward from Mafikeng to Johannesburg and back.

(c) that the Second to the Eighteenth Respondents have applied for membership of the Mafikeng, Mmabatho, Montshiwa Taxi Association (MMTA) and have been accepted as members pending the outcome of their application for temporary road carrier permits to the Local Transportation Board of the North West, permitting them to transport passengers commencing from Mafikeng and proceeding to Johannesburg;

(d) The First to Eighteenth Respondents admit that they conveyed passengers from the Mafikeng Taxi Rank on the 2nd December 2002 proceeding to Johannesburg and that the Eighth Respondent received a traffic fine of R1000-00 at Lichtenburg for conveying passengers for reward without a permit;

(e) They deny that they were causing any disturbance at the taxi rank or that they were assaulting the commuters and the members of the Applicant; and

(f) that the Applicant or its members have not established a clear right to convey passengers from Mafikeng taxi rank to Johannesburg because they are not holders of operating licences and/or permits and also that they (applicant or its members) have no right to prevent Respondents from conveying passengers from the Mafikeng taxi rank to Johannesburg.

It is essential to refer to the relevant statutes in order to establish whether the Applicants are entitled to an order restraining the Respondents from entering the Mafikeng Taxi and Bus Terminus for the purpose of conveying passengers for reward from Mafikeng to Johannesburg and back.

6. The National Land Transport Transition Act No 22 of 2000 (The Act) provides in the following sections: “33. (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 in terms of section 20 of the Road Transportation Act, 1977 (Act No 74 of 1977), or an authorisation obtained or completed in terms of a replacing provincial law, for such special event. (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) cabotage on the authority of a permit mentioned in section 31 of that Act. Operating licence is not a right 34. (1) Except on the conversion of a permit to an operating licence, no person has a right to be issued with an operating licence.

6. The National Land Transport Transition Act No 22 of 2000 (The Act) provides in the following sections:

“33. (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 in terms of section 20 of the Road Transportation Act, 1977 (Act No 74 of 1977), or an authorisation obtained or completed in terms of a replacing provincial law, for such special event.

(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) cabotage on the authority of a permit mentioned in section 31 of that Act.

Operating licence is not a right

34. (1) Except on the conversion of a permit to an operating licence, no person has a right to be issued with an operating licence.

(2) An operating licence in respect of a minibus taxi-type service may be granted only to a person who is a member of a provisionally or fully registered association, or to a registered non-member, or to a person who has applied for registration as a non-member and has been granted a certificate contemplated in section 113 (2).” (My emphasis). 7. (a) In the founding affidavit, it is alleged that Applicant’s association is registered in terms of the Gauteng Public Passenger Road Transport Act No 7 of 2001. It is common cause that Applicant is not registered as a taxi association in the North West. (b) Section 67 of the Gauteng Public Passenger Road Transport Act provides that: “(1) Upon registration of an association, a member or a non-member that undertakes interprovincial transport, the Registrar must forward a copy of the certificate of registration and all registered details to the registrar or department responsible for transport affairs in each province to or from which the members of the association, or the non-member, operate. (2) When the Registrar is notified by the Registrar of another province that an association, member or non-member has been registered in that other province, the Registrar must note the fact in his or her records, as well as the particulars thereof as supplied by the other Registrar.” (My emphasis).

(2) An operating licence in respect of a minibus taxi-type service may be granted only to a person who is a member of a provisionally or fully registered association, or to a registered non-member, or to a person who has applied for registration as a non-member and has been granted a certificate contemplated in section 113 (2).” (My emphasis).

7. (a) In the founding affidavit, it is alleged that Applicant’s association is registered in terms of the Gauteng Public Passenger Road Transport Act No 7 of 2001. It is common cause that Applicant is not registered as a taxi association in the North West.

(b) Section 67 of the Gauteng Public Passenger Road Transport Act provides that:

“(1) Upon registration of an association, a member or a non-member that undertakes interprovincial transport, the Registrar must forward a copy of the certificate of registration and all registered details to the registrar or department responsible for transport affairs in each province to or from which the members of the association, or the non-member, operate.

(2) When the Registrar is notified by the Registrar of another province that an association, member or non-member has been registered in that other province, the Registrar must note the fact in his or her records, as well as the particulars thereof as supplied by the other Registrar.” (My emphasis).

8. The Applicant alleges that its association is registered in terms of the Gauteng Public Passenger Road Transport Act. I assume the registration is in accordance with section 67 of this Act. The effect thereof is that in accordance with section 55 (1) of the National Land Transport Transition Act, it was not necessary for the Applicant to apply for registration as an association with the North West Registrar of the Department of Transport. If indeed they were registered, one would have expected the Applicant to substantiate its allegations by attaching the registration certificate issued by the Registrar of the Department of Transport in Gauteng and proof to the effect that such copy was forwarded to the Registrar of Transport of the North West Province. 9. (a) Section 55 (1) (a) of the National Land Transport Transition Act provides that: “An association and any of its members or any non-member that undertakes interprovincial services may not at any time be registered or provisionally registered in more than one province in respect of a particular route.” (b) See 55 (2) of the same Act provides that “a registration or provisional registration of an association and any of its members and of any non-member, who undertake interprovincial transport in a province while registered in another province is without any legal force (My emphasis).

8. The Applicant alleges that its association is registered in terms of the Gauteng Public Passenger Road Transport Act. I assume the registration is in accordance with section 67 of this Act. The effect thereof is that in accordance with section 55 (1) of the National Land Transport Transition Act, it was not necessary for the Applicant to apply for registration as an association with the North West Registrar of the Department of Transport. If indeed they were registered, one would have expected the Applicant to substantiate its allegations by attaching the registration certificate issued by the Registrar of the Department of Transport in Gauteng and proof to the effect that such copy was forwarded to the Registrar of Transport of the North West Province.

9. (a) Section 55 (1) (a) of the National Land Transport Transition Act provides that:

“An association and any of its members or any non-member that undertakes interprovincial services may not at any time be registered or provisionally registered in more than one province in respect of a particular route.”

(b) See 55 (2) of the same Act provides that “a registration or provisional registration of an association and any of its members and of any non-member, who undertake interprovincial transport in a province while registered in another province is without any legal force (My emphasis).

Section 34 (2) of the National Land Transport Transition Act provides that: “An operating licence in respect of a minibus taxi-type service may be granted only to a person who is a member of a provisionally or fully registered association, or to a registered non-member, or to a person who has applied for registration as a non-member and has been granted a certificate contemplated in section 113 (2).” 0in; line-height: 150%"> 11. Compliance with the provisions of the Acts referred to above, would therefore confer the Applicant’s members with a clear right to convey passengers commencing from Johannesburg to Mafikeng and from Mafikeng taxi rank to Johannesburg. These provisions apply to new applicants who wish to obtain operating licences in terms of section 33 (1) mentioned above. 12. The Respondents raised a preliminary point challenging the locus standi of the Applicant to bring this application in view of the fact that the Applicant is not registered in the North West as an association as contemplated in section 1 of the National Land Transport Transition Act. 13. I find no merit in this submission because section 1 (i) of the National Land Transport Transition Act provides that: “association means any group of persons formed primarily in relation to the operation of a minibus taxi-type services and - (a) which has been formed not for gain; (b) whose object is to promote the interests of its members; and (c) whose funds are to be applied in promoting those interests;”

Section 34 (2) of the National Land Transport Transition Act provides that: “An operating licence in respect of a minibus taxi-type service may be granted only to a person who is a member of a provisionally or fully registered association, or to a registered non-member, or to a person who has applied for registration as a non-member and has been granted a certificate contemplated in section 113 (2).”

0in; line-height: 150%">

11. Compliance with the provisions of the Acts referred to above, would therefore confer the Applicant’s members with a clear right to convey passengers commencing from Johannesburg to Mafikeng and from Mafikeng taxi rank to Johannesburg. These provisions apply to new applicants who wish to obtain operating licences in terms of section 33 (1) mentioned above.

12. The Respondents raised a preliminary point challenging the locus standi of the Applicant to bring this application in view of the fact that the Applicant is not registered in the North West as an association as contemplated in section 1 of the National Land Transport Transition Act.

“association means any group of persons formed primarily in relation to the operation of a minibus taxi-type services and -

(a) which has been formed not for gain;

(b) whose object is to promote the interests of its members; and

(c) whose funds are to be applied in promoting those interests;”

14. The fact that the Applicant is an association registered in terms of the Gauteng Public Passenger Road Transport Act, does not disqualify them from being an association because the provisions of section 1 (i) do not define an “association” as an entity that has to be registered in terms of section 55 of the National Land Transport Transition Act. The Respondents have also raised a point in limine based on the fact that Mr Golly Mokoena does not have the necessary authority to depose to the founding affidavit on behalf of the Applicant because the special resolution does not form part of the founding affidavit and also that the Executive Committee of the Applicant took a Special Resolution on the 16 th October 2002, in terms whereof Mr Golly Mokoena was authorized to depose to a founding affidavit related to issues which were brought before the Witwatersrand Local Division of the High Court of South Africa. (a) Deponent alleges that he was authorized as Chairperson, by a Special Resolution passed by the Executive Committee to depose to the affidavit on the 16th October 2002 and (b) That the primary purpose of Applicant is to “secure and promote the interests of its members and is empowered to oppose all matters tending or calculated to impinge or encroach wrongfully upon the rights and privileges of its members and to take all steps as may be deemed necessary by the Applicant to preclude any misconduct on the part of any of its members or the drivers of its members.”

14. The fact that the Applicant is an association registered in terms of the Gauteng Public Passenger Road Transport Act, does not disqualify them from being an association because the provisions of section 1 (i) do not define an “association” as an entity that has to be registered in terms of section 55 of the National Land Transport Transition Act.

(a) Deponent alleges that he was authorized as Chairperson, by a Special Resolution passed by the Executive Committee to depose to the affidavit on the 16th October 2002 and

(b) That the primary purpose of Applicant is to “secure and promote the interests of its members and is empowered to oppose all matters tending or calculated to impinge or encroach wrongfully upon the rights and privileges of its members and to take all steps as may be deemed necessary by the Applicant to preclude any misconduct on the part of any of its members or the drivers of its members.”

(c) The Respondents are more concerned about the date in which the special resolution was passed but do not attack the capacity of Mr Golly Mokoena to depose to the founding affidavit in his capacity as the Chairperson of Applicant, acting as such on behalf of Applicant. Compare Highveldridge Residents Concerned Party v Highveldridge TLC 2002 (6) SA 66 (TPD). I find no merit in the Respondents’ preliminary point raised in this regard, and find that the Applicant has locus standi to bring this application. Section 40 of the Gauteng Public Passenger Road Transport Act provides that: “40 (1) Applicants for interprovincial transport must apply to the Board if services in question commence in Gauteng, or in Gauteng as well as in another province. (2) For the purposes of this section services shall be deemed to commence at a place where persons board a motor vehicle for the purpose of being conveyed to another place, and to terminate there. (My emphasis). (3) In the case of doubt as to where the services will commence, the applicant must apply in the province where the motor vehicle in question is registered.

(c) The Respondents are more concerned about the date in which the special resolution was passed but do not attack the capacity of Mr Golly Mokoena to depose to the founding affidavit in his capacity as the Chairperson of Applicant, acting as such on behalf of Applicant. Compare Highveldridge Residents Concerned Party v Highveldridge TLC 2002 (6) SA 66 (TPD). I find no merit in the Respondents’ preliminary point raised in this regard, and find that the Applicant has locus standi to bring this application.

Section 40 of the Gauteng Public Passenger Road Transport Act provides that:

“40 (1) Applicants for interprovincial transport must apply to the Board if services in question commence in Gauteng, or in Gauteng as well as in another province.

(2) For the purposes of this section services shall be deemed to commence at a place where persons board a motor vehicle for the purpose of being conveyed to another place, and to terminate there. (My emphasis).

(3) In the case of doubt as to where the services will commence, the applicant must apply in the province where the motor vehicle in question is registered.

(4) The Board may not grant an application for an operating licence authorizing services which commence in another province, or for the renewal or transfer of the operating licence, or for an amendment of the operating licence for conducting of services in another province, except with the agreement of the operating licence issuing authority established for that province. (My emphasis). (7) In the case of interprovincial services, passengers may not be picked up or dropped off except at pick-up points or destination, unless there is no alternative service between the pick-up points or destination and the drop off or pick-up point, or, in the case of minibus taxi-type services, the relevant associations whose members operate on the routes have agreed to the contrary.” Section 7 (3) of the Road Transport Act No 74 of 1977 (the Act under which the Applicant’s members were issued with the public permits) and section 40 (4) of the Gauteng Public Passenger Road Transport Act No 7 of 2001, all provide that a transportation board may not grant a permit or operating licence authorizing road transportation which commences in an area or province other than for which that board was established except with the agreement of the board or issuing authority established in the other province. It therefore follows that the Registrar of the Gauteng Licencing Board cannot issue a permit or Operating Licence which authorizes the commencement of the journey from the Mafikeng taxi rank, except if it can be shown that such an agreement does exist.

(4) The Board may not grant an application for an operating licence authorizing services which commence in another province, or for the renewal or transfer of the operating licence, or for an amendment of the operating licence for conducting of services in another province, except with the agreement of the operating licence issuing authority established for that province. (My emphasis).

(7) In the case of interprovincial services, passengers may not be picked up or dropped off except at pick-up points or destination, unless there is no alternative service between the pick-up points or destination and the drop off or pick-up point, or, in the case of minibus taxi-type services, the relevant associations whose members operate on the routes have agreed to the contrary.”

Section 7 (3) of the Road Transport Act No 74 of 1977 (the Act under which the Applicant’s members were issued with the public permits) and section 40 (4) of the Gauteng Public Passenger Road Transport Act No 7 of 2001, all provide that a transportation board may not grant a permit or operating licence authorizing road transportation which commences in an area or province other than for which that board was established except with the agreement of the board or issuing authority established in the other province. It therefore follows that the Registrar of the Gauteng Licencing Board cannot issue a permit or Operating Licence which authorizes the commencement of the journey from the Mafikeng taxi rank, except if it can be shown that such an agreement does exist.

It would seem, as I have already alluded to above, the procedure for obtaining an operating licence or permit, in accordance with sections 33 and 34 of the National Land Transport Transition Act, applies only to new applicants. This is evident from the provisions of section 34 (1) of the same Act which provides that “Except on conversion of a permit to an operating licence,” no person has a right to be issued with an operating licence. (My emphasis). (a) Sections 32 and 79 of the National Land Transport Transition Act provide for the continuation and conversion of the existing permits. With regard to the conversion of existing permits or continuation thereof, section 32 (1) of the Act provides: “32. (1) All permits must be converted to operating licences by the date mentioned in subsection (2) failing which they lapse. (2)(a) The Minister in consultation with the MECs must by notice in the Government Gazette determine a date by which all permits must have been converted for the purposes of this section, with due regard among other things to the consideration that operators may not be deprived of their permits through not being able to apply timeously for conversions due to circumstances beyond their control. (b) The Minister, in consultation with the MECs, may defer the date so determined by notice in the Government Gazette in respect of a particular province or provinces.

It would seem, as I have already alluded to above, the procedure for obtaining an operating licence or permit, in accordance with sections 33 and 34 of the National Land Transport Transition Act, applies only to new applicants. This is evident from the provisions of section 34 (1) of the same Act which provides that “Except on conversion of a permit to an operating licence,” no person has a right to be issued with an operating licence. (My emphasis).

(a) Sections 32 and 79 of the National Land Transport Transition Act provide for the continuation and conversion of the existing permits.

With regard to the conversion of existing permits or continuation thereof, section 32 (1) of the Act provides:

“32. (1) All permits must be converted to operating licences by

the date mentioned in subsection (2) failing which they lapse.

(2)(a) The Minister in consultation with the MECs must by notice in the Government Gazette determine a date by which all permits must have been converted for the purposes of this section, with due regard among other things to the consideration that operators may not be deprived of their permits through not being able to apply timeously for conversions due to circumstances beyond their control.

(b) The Minister, in consultation with the MECs, may defer the date so determined by notice in the Government Gazette in respect of a particular province or provinces.

(4) Subject to this Act, an operating licence that has been converted from a permit confers the same authority and has the same status as the permit from which it was converted. (b) Section 79 provides: “79 (1) Subject to this Part, any permit issued for an indefinite period and any permit issued for a definite period which, on the commencement of this Act, has not yet expired, remains in force temporarily as provided for in this section. (2) The holder of such permit may have it converted to an operating licence in accordance with this Part by applying for the conversion, in the manner prescribed by the MEC - (a) in the case of a permit for a definite period, before the expiry of the period determined by the Minister under section 32 (2); (b) in the case of a permit for a definite period, before the expiry of the definite period or the period contemplated in paragraph (a), whichever occurs first. (3) A permit mentioned in subsection (1) lapses - (a) where such application for conversion has not been made -

(4) Subject to this Act, an operating licence that has been converted from a permit confers the same authority and has the same status as the permit from which it was converted.

(b) Section 79 provides:

“79 (1) Subject to this Part, any permit issued for an indefinite period and any permit issued for a definite period which, on the commencement of this Act, has not yet expired, remains in force temporarily as provided for in this section.

(2) The holder of such permit may have it converted to an operating licence in accordance with this Part by applying for the conversion, in the manner prescribed by the MEC -

(a) in the case of a permit for a definite period, before the

expiry of the period determined by the Minister under section 32 (2);

(b) in the case of a permit for a definite period, before the expiry of the definite period or the period contemplated in paragraph (a), whichever occurs first.

(3) A permit mentioned in subsection (1) lapses -

(a) where such application for conversion has not been made -

(i) in the case of a permit for an indefinite period, on the expiry of the period mentioned in paragraph (a) of subsection (2); (ii) in the case of a permit for a definite period, on the expiry of the definite period or the period mentioned in that paragraph, whichever occurs first; or (b) where such an application has been made, upon the conversion of the permit to an appropriate operating licence in accordance with this Act. (4) The authority conferred by a permit may not be renewed, amended or transferred unless the permit has first been converted to a operating licence in accordance with this Part.” The members of Applicant, whose permits were attached to the Replying Affidavit, were issued with “public permits” in terms of and subject to the provisions of the Road Transportation Act No 74 of 1977. Their permits were still valid on the 2nd December 2002 in that some were issued for an indefinite period and those that were issued for a definite period had not yet expired.

(i) in the case of a permit for an indefinite period, on the expiry of the period mentioned in paragraph (a) of subsection (2);

(ii) in the case of a permit for a definite period, on the expiry of the definite period or the period mentioned in that paragraph, whichever occurs first; or

(b) where such an application has been made, upon the conversion of the permit to an appropriate operating licence in accordance with this Act.

(4) The authority conferred by a permit may not be renewed, amended or transferred unless the permit has first been converted to a operating licence in accordance with this Part.”

The members of Applicant, whose permits were attached to the Replying Affidavit, were issued with “public permits” in terms of and subject to the provisions of the Road Transportation Act No 74 of 1977. Their permits were still valid on the 2nd December 2002 in that some were issued for an indefinite period and those that were issued for a definite period had not yet expired.

Applicant alleges that it is registered in terms of the Gauteng Public Passenger Road Transport Act; that its members’ public permits were issued in accordance with the Road Transport Act of 1977 by the Johannesburg Licencing Board; that because they are holders of permits and not of operating licences, the provisions of sections 79 (1) and 32 (2) are applicable to them. But all the abovementioned Acts provide for an agreement between the Provincial Licencing Boards of the provinces, where interprovincial permits or operation licences are concerned. The Applicant does not disclose in its founding affidavit that such an agreement does exist. There is also nothing on record to prove that the provisions of sections 32 and 79 mentioned above, have been complied with. In the absence of evidence proving that such an agreement exists between the Gauteng/Johannesburg and North West Provincial

Licencing Boards, authorising the Applicant’s members to commence the transportation journey from Mafikeng to Johannesburg, it becomes difficult for me to come to a conclusion that all the Applicant’s members have established a clear right to transport passengers from Mafikeng taxi rank for reward based on their various permits. This is an issue that may be cleared by the

Applicant and its members with the Gauteng Licencing Board.

Applicant alleges that it is registered in terms of the Gauteng Public Passenger Road Transport Act; that its members’ public permits were issued in accordance with the Road Transport Act of 1977 by the Johannesburg Licencing Board; that because they are holders of permits and not of operating licences, the provisions of sections 79 (1) and 32 (2) are applicable to them. But all the abovementioned Acts provide for an agreement between the Provincial Licencing Boards of the provinces, where interprovincial permits or operation licences are concerned. The Applicant does not disclose in its founding affidavit that such an agreement does exist. There is also nothing on record to prove that the provisions of sections 32 and 79 mentioned above, have been complied with.

In the absence of evidence proving that such an agreement exists between the Gauteng/Johannesburg and North West Provincial

Licencing Boards, authorising the Applicant’s members to commence the transportation journey from Mafikeng to Johannesburg, it becomes difficult for me to come to a conclusion that all the Applicant’s members have established a clear right to transport passengers from Mafikeng taxi rank for reward based on their various permits. This is an issue that may be cleared by the

Applicant and its members with the Gauteng Licencing Board.

I must here pause to state that not all members of Applicant are affected by the abovementioned provisions (sections 32 and 79). It is common cause between the Applicant and the Respondents that some of the taxi operators, inter alia, Messrs P G Lesolle and A K Tawana, are authorized to convey passengers from Mafikeng to Johannesburg. The issue raised by the Respondents was that the two members are not members of Applicant. I find the list of members attached to Mr Golly Mokoena’s Replying Affidavit as “Annexure G”, and wherein the aforementioned names appear, to be sufficient proof of Applicant’s members of record. There is no merit in the allegation that they are not registered with the Registrar of the Minibus Taxi Industry of the North West Province; this does not in any way affect their membership status with the applicant. As far as the Respondents are concerned, they admit that they are not holders of permits or operating licences allowing them to convey passengers for reward from the Mafikeng taxi rank to Johannesburg. Their actions are therefore illegal and should therefore be addressed by the appropriate authorities, who have already taken appropriate action against one of the Respondents. With regard to the issue raised on behalf of the Respondents about the non joinder of the Executive Council of the Department of Transport, the Operating Licencing Board and the Registrar of the Minibus Taxi Industry all of the North West Province, as interested parties, I find no merit in the submission. These bodies do not have an interest in the interpretation of section 79 of the National Land Transport Transition Act although they may be affected thereby, they cannot contribute to the litigation or proceedings in this regard.

I must here pause to state that not all members of Applicant are affected by the abovementioned provisions (sections 32 and 79). It is common cause between the Applicant and the Respondents that some of the taxi operators, inter alia, Messrs P G Lesolle and A K Tawana, are authorized to convey passengers from Mafikeng to Johannesburg. The issue raised by the Respondents was that the two members are not members of Applicant. I find the list of members attached to Mr Golly Mokoena’s Replying Affidavit as “Annexure G”, and wherein the aforementioned names appear, to be sufficient proof of Applicant’s members of record. There is no merit in the allegation that they are not registered with the Registrar of the Minibus Taxi Industry of the North West Province; this does not in any way affect their membership status with the applicant.

As far as the Respondents are concerned, they admit that they are not holders of permits or operating licences allowing them to convey passengers for reward from the Mafikeng taxi rank to Johannesburg. Their actions are therefore illegal and should therefore be addressed by the appropriate authorities, who have already taken appropriate action against one of the Respondents.

With regard to the issue raised on behalf of the Respondents about the non joinder of the Executive Council of the Department of Transport, the Operating Licencing Board and the Registrar of the Minibus Taxi Industry all of the North West Province, as interested parties, I find no merit in the submission. These bodies do not have an interest in the interpretation of section 79 of the National Land Transport Transition Act although they may be affected thereby, they cannot contribute to the litigation or proceedings in this regard.

The Applicant has to establish on a balance of probabilities that its members or some of them have a clear right to convey passengers from Mafikeng taxi rank and proceed to Johannesburg, and that they are holders of valid permits or operating licences authorizing Applicant’s members to do so; I have already expressed my doubts with regard to the authority purportedly conferred to some of the Applicant’s members as stated in their permits. There is no doubt that some members are authorized to convey passengers from Mafikeng taxi rank to Johannesburg, but the same cannot be said about those members, whose permits were issued by the Johannesburg Licencing Board allowing them to convey passengers from Johannesburg to Mafikeng taxi rank and back. (“the forward and the return journey”) as it appears in the permits. “ The requisites for the right to Claim an interdict are well known: a clear right injury actually committed or reasonable apprehension and the absence of similar protection by any other ordinary remedy.” Setlogelo v Setlogelo 1914 AD 221 at 227.

The Applicant has to establish on a balance of probabilities that its members or some of them have a clear right to convey passengers from Mafikeng taxi rank and proceed to Johannesburg, and that they are holders of valid permits or operating licences authorizing Applicant’s members to do so; I have already expressed my doubts with regard to the authority purportedly conferred to some of the Applicant’s members as stated in their permits. There is no doubt that some members are authorized to convey passengers from Mafikeng taxi rank to Johannesburg, but the same cannot be said about those members, whose permits were issued by the Johannesburg Licencing Board allowing them to convey passengers from Johannesburg to Mafikeng taxi rank and back. (“the forward and the return journey”) as it appears in the permits.

“ The requisites for the right to Claim an interdict are well known: a clear right injury actually committed or reasonable apprehension and the absence of similar protection by any other ordinary remedy.” Setlogelo v Setlogelo 1914 AD 221 at 227.

In the absence of a clear right, no injury may be said to have been committed, especially with regard to the order seeking to restrain the Respondents from entering the Mafikeng taxi rank. The Respondents may enter the taxi rank but because they are not holders of valid permits or operating licences, they may not do so for the purpose of conveying, passengers for reward and should not interfere with the loading of passengers by harassing both the passengers and taxis which have been properly authorized to convey passengers as aforesaid, as this would amount to interference with the rights of other individuals. As to whether the Respondents did indeed interfere with the passengers and the smooth running of the taxi business on the 2nd December 2002, it is not in dispute that one of the Respondents, in particular, the Eighth Respondent, did convey passengers to Johannesburg illegally. As to whether there was intimidation and or harassment in the process, is a matter which is in dispute between the parties hereto and which matter cannot be decided on the papers before me. See Room Hire Co (Pty) Ltd v Jeppe Street Mansions 1949 (3) SA 1153 (T) at 1162. In respect of those members of the Applicant, who are authorized to convey passengers from Mafikeng taxi rank to Johannesburg, I am satisfied that they have a clear right to conduct an undisturbed and uninterrupted business of conveying passengers, and that whoever is not authorized through a valid permit or operating licence to convey passengers, would be interfering with the smooth running of the taxi operating business. The National Road Land Transport Transition Act provides for the Law Enforcement Procedures in Part iv of Chapter 3 which may be utilized in safeguarding the rights of the holders of valid permits, and the passengers, and taking appropriate action against those who violate the provisions of this Act.

In the absence of a clear right, no injury may be said to have been committed, especially with regard to the order seeking to restrain the Respondents from entering the Mafikeng taxi rank. The Respondents may enter the taxi rank but because they are not holders of valid permits or operating licences, they may not do so for the purpose of conveying, passengers for reward and should not interfere with the loading of passengers by harassing both the passengers and taxis which have been properly authorized to convey passengers as aforesaid, as this would amount to interference with the rights of other individuals. As to whether the Respondents did indeed interfere with the passengers and the smooth running of the taxi business on the 2nd December 2002, it is not in dispute that one of the Respondents, in particular, the Eighth Respondent, did convey passengers to Johannesburg illegally. As to whether there was intimidation and or harassment in the process, is a matter which is in dispute between the parties hereto and which matter cannot be decided on the papers before me. See Room Hire Co (Pty) Ltd v Jeppe Street Mansions 1949 (3) SA 1153 (T) at 1162.

In respect of those members of the Applicant, who are authorized to convey passengers from Mafikeng taxi rank to Johannesburg, I am satisfied that they have a clear right to conduct an undisturbed and uninterrupted business of conveying passengers, and that whoever is not authorized through a valid permit or operating licence to convey passengers, would be interfering with the smooth running of the taxi operating business.

The National Road Land Transport Transition Act provides for the Law Enforcement Procedures in Part iv of Chapter 3 which may be utilized in safeguarding the rights of the holders of valid permits, and the passengers, and taking appropriate action against those who violate the provisions of this Act.

33. The parties hereto are ad idem that on the 2nd December 2002, the members of the “Conflict Resolution Section of the Department of Transport” intervened and allowed two of the Applicant’s members to load their taxi. In the process, Mr Mogoiwa, one of the Applicant’s members, was assaulted and the matter was reported to the police. According to the Respondents, attempts were made by the aforesaid members of the Department of Transport to have a meeting with both parties hereto in order to resolve this problem, but this did not materialize because the Applicant and Applicant’s members were unco-operative. It would seem that their intervention did not assist in that one of the Respondents was arrested subsequently in Lichtenburg for having conveyed passengers for reward without a valid permit. This indicates lack of respect for authority on the part of some of the Respondents. I am satisfied that the applicant has made out a case against the Respondents to the effect that on the 2nd December 2002 they interfered with the smooth running of their taxi operation and that it is necessary to restrain them (Respondents) from further continuing with such conduct. With regard to costs, I find that the Applicant has succeeded to prove on a balance of probabilities that it is entitled to the orders in terms of the Notice of Motion and find that the Respondents, through their own admission, have illegally conveyed passengers for reward from the Mafikeng taxi rank, interfering with registered members of the Applicant and non members who are holders of valid permits or operating licences. Their reasons for violating the law are abhorrent and should not be allowed to prevail in a democratic and civil society. I find their behaviour to be highly reprehensible. For the above reasons, I accordingly make the following order: “ 1. The rule nisi issued by this Honourable Court on the 3rd December 2002 is confirmed, but altered to read as follows:

33. The parties hereto are ad idem that on the 2nd December 2002, the members of the “Conflict Resolution Section of the Department of Transport” intervened and allowed two of the Applicant’s members to load their taxi. In the process, Mr Mogoiwa, one of the Applicant’s members, was assaulted and the matter was reported to the police. According to the Respondents, attempts were made by the aforesaid members of the Department of Transport to have a meeting with both parties hereto in order to resolve this problem, but this did not materialize because the Applicant and Applicant’s members were unco-operative. It would seem that their intervention did not assist in that one of the Respondents was arrested subsequently in Lichtenburg for having conveyed passengers for reward without a valid permit. This indicates lack of respect for authority on the part of some of the Respondents. I am satisfied that the applicant has made out a case against the Respondents to the effect that on the 2nd December 2002 they interfered with the smooth running of their taxi operation and that it is necessary to restrain them (Respondents) from further continuing with such conduct.

With regard to costs, I find that the Applicant has succeeded to prove on a balance of probabilities that it is entitled to the orders in terms of the Notice of Motion and find that the Respondents, through their own admission, have illegally conveyed passengers for reward from the Mafikeng taxi rank, interfering with registered members of the Applicant and non members who are holders of valid permits or operating licences. Their reasons for violating the law are abhorrent and should not be allowed to prevail in a democratic and civil society. I find their behaviour to be highly reprehensible.

For the above reasons, I accordingly make the following order:

“ 1. The rule nisi issued by this Honourable Court on the 3rd December 2002 is confirmed, but altered to read as follows:

(a) Respondents are interdicted from entering the Mafikeng Taxi and Bus Terminus /Rank situated between Victoria and Hatchard Streets, Mafikeng, for the purpose of conveying passengers for reward or otherwise whilst not holders of valid permits or operating licences permitting them to do so; (b) Respondents are interdicted from intimidating, harassing or in any way interfering with the normal conduct of the taxi business by the members of the Applicant; 2. Respondents are ordered to pay costs jointly and severally, the one paying the other to be absolved.” M M LEEUW JUDGE OF THE HIGH COURT FOR THE APPLICANT : JOHN VAN ONSELEN INC FOR THE RESPONDENTS : MOKALE MOSHIDI ATTORNEYS

(a) Respondents are interdicted from entering the Mafikeng Taxi and Bus Terminus /Rank situated between Victoria and Hatchard Streets, Mafikeng, for the purpose of conveying passengers for reward or otherwise whilst not holders of valid permits or operating licences permitting them to do so;

(b) Respondents are interdicted from intimidating, harassing or in any way interfering with the normal conduct of the taxi business by the members of the Applicant;

2. Respondents are ordered to pay costs jointly and severally, the one paying the other to be absolved.”

M M LEEUW

JUDGE OF THE HIGH COURT

FOR THE APPLICANT : JOHN VAN ONSELEN INC

FOR THE RESPONDENTS : MOKALE MOSHIDI ATTORNEYS