Majakathata Long Distance Taxi Association and Others v Welkom United Taxi Association and Others (A154/2020) [2021] ZAFSHC 281 (4 November 2021)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Appeal number: A154/2020

Case no: 4952/2018

In the matter between:

MAJAKATHATA LONG DISTANCE TAXI ASSOCIATION

First Appellant

(ODENDAALSRUS MAJAKATHATA LONG DISTANCE

TAXI ASSOCIATION)

MOHAHLAULA TAXI ASSOCIATION AND OTHERS

(ODENDAALSRUS)

Second Appellant

and

WELKOM UNITED TAXI ASSOCIATION

1st Respondent

I.D. SEHUME 2nd Respondent

S.P. MOKOSI 3rd Respondent

B.S. SELOANA 4th Respondent

M.J. HOK

5th Respondent

L.A. MACHOLO 6th Respondent

L.E. KINAMELA

7th Respondent

S.K. DICHABA

8th Respondent

KGATELOPELE TAXI ASSOCIATION 9th Respondent

S.J. PHOLO 10th Respondent

M.P. MOFOKENG

11th Respondent

NATHANIEL PHMUDI RASENYALO 12th Respondent

S.M. MOKGOSI 13th Respondent

M.D. RAMONGALO

14th Respondent

M.J. MODUKANELE

15th Respondent

MEC FOR POLICE, ROADS AND TRANSPORT 16th Respondent

FREE STATE PROVINCIAL REGULATOR

17th Respondent

FREE STATE TRANSPORT REGISTRAR

18th Respondent

CORAM:

LOUBSER J, WRIGHT AJ et VAN RHYN AJ

JUDGMENT BY: WRIGHT AJ

HEARD ON:

13 SEPTEMBER 2021

DELIVERED ON: 4 NOVEMBER 2021

[1] This is an appeal against an order and judgment by Chesiwe AJ (as she then was) in application proceedings. The appeal is with leave from the court a quo.

[2] The two Appellants, the Majakathata Long Distance Taxi Association and the Mohahlaula Taxi Association, were two of the respondents in an urgent application launched by two other disgruntled taxi associations[1] and several of their members (the First to Fifteenth Respondents in the appeal). The other respondents in the urgent application[2] (although cited in the appeal as co-respondents) play no role in the appeal as no relief had been ordered against them. For the sake of convenience, I will herein after use the term “Respondents” to refer to the taxi associations and their members who launched the urgent application in the court a quo.[3]

[3] The Respondents approached the court a quo on an urgent basis. The essence of the substantial relief they requested may conveniently be summarised as follows:

(i) That the Appellants and their members immediately restore peaceful and undisturbed possession of the offices of one of the applicant taxi associations;

(ii) That the Appellants and their members be interdicted from operating on certain routes without valid permits and/or licences;

(iii) That the Appellants and their members desist from operating an illegal taxi rank;

(iv) That the Appellants and their members be interdicted from threatening, assaulting, or insulting the applicants and their members.

[4] Whenever a court is approached on an urgent basis, the first hurdle for the applicant(s) to overcome is that of urgency. Should an applicant fail to successfully negotiate that first obstacle, condonation for any non-compliance with court rules should not be granted and all the other relief requested should of necessity fall to the wayside. The Respondents issued their application indicating shortened time periods for the filing of answering and further affidavits and the matter was set down for hearing on a non-motion court day. The Respondents were successful in obtaining condonation, the matter was disposed of on an urgent basis and substantive relief was granted in their favour.

[5] The court a quo dealt with the issue of urgency by referring to the provisions of Rule 6(12) and the practical implications thereof as set out in the well-known case of Luna Meubel Vervaardigers (Edms) Bpd v Makin (t/a Makin’s Furniture Manufacturers).[4] In as far as the Respondents requested interdictory relief against the Appellants, the court a quo considered the requirements for an interlocutory interdict by referring to those as “the requirements for an urgent interdict”. Questions relating to urgency and whether the Respondents were entitled to an interlocutory interdict in their favour were

considered as one.

[6] The court a quo did not explicitly make or express a ruling that the matter was urgent. However, one can infer that the court a quo accepted the matter to be urgent. Condonation was granted and substantive orders were issued against the Appellants (based on the merits of the application as perceived by the presiding judge). The Appellants rely on grounds of appeal against the findings of the court a quo on the substantive relief. They also submit that the matter was incorrectly considered to be urgent.

[7] The first question to be considered is thus whether the court a quo correctly ruled the matter to be urgent. Should the question be answered in the affirmative, we need to further consider whether the court a quo correctly issued substantial relief in favour of the Respondents. Should the answer be that the matter was not urgent, there will be no need to consider whether a proper case had been made out for the granting of any substantial relief.

[8] In the oral arguments before us, the Respondents’ representative conceded that the grounds on which the Respondents relied for urgency were not explicitly set out in the founding affidavit. He labelled it as an oversight on his part and submitted that the facts as set out by the Respondents however justified a finding of urgency. Mr Khang argued that the facts and circumstances pertaining specifically to prayer 3 of the Notice of Motion form the basis for the urgent application.[5] Prayer 3 relates to the alleged unlawful occupation of one of the respondent taxi associations. The chronology of events preceding the urgent application and as set out in the founding affidavit deserve scrutiny in order to ascertain whether the facts as alleged by the Respondents rendered the matter urgent.

[9] It is clear from the papers that the parties have been at loggerheads for a significant period of time. In their founding affidavit the Respondents stated that the basis of their application emanated from the Appellants’ alleged contravention of the provisions of the Free State Transport Act, 4 of 2005 and the regulations promulgated in terms thereof. On an unspecified date[6] the Appellants were given authority and/or permission to operate on certain routes[7] without possessing valid permits or licences, and without proper procedures having been followed. This led to the development of an illegal taxi rank. The Respondents objected to the unlawful conduct and held a meeting with various stakeholders.[8] Although resolutions were taken at the meeting, these did not deliver the results desired by the Respondents.

[10] On 16 September 2017[9] the First Respondent wrote a letter of complaint to the MEC on behalf of its members. The MEC were requested to stop the Appellants from operating illegally, to close the illegal taxi rank and to protect the taxi operators who held valid licences or permits. The Respondents stated in their founding affidavit that these proposals / requests “also led” to the urgent application. The letter was not responded to. On 18 January 2018 the Free State Transport Registrar issued a circular wherein he threatened to take action against any association operating illegally or erecting illegal taxi ranks. In the meantime, more members of the Appellants allegedly continued with their illegal taxi operations and the development of the illegal taxi rank.

[11] During February 2018 the Respondents approached their attorney for legal advice. On 26 February 2018 a letter was written to the MEC requesting an end to both the illegal taxi operations and the development of the illegal taxi rank. On 27 February 2018 similar letters were written to the Appellants. The Appellants’ attorneys acknowledged receipt of the letters only on 10 April 2018. The Respondents’ attorney could not respond to the letter as he fell ill “shortly” after receiving the letter. He was on sick leave until around 11 September 2018. During this period, on 25 June 2018, the First Respondent sent another letter to the MEC, requesting a meeting with stakeholders. A meeting was subsequently convened for 6 July 2018, during which meeting the MEC again vowed to end the illegal operations and taxi rank. The undertakings by the MEC

notwithstanding, the Appellants allegedly continued with their illegal conduct.

[12] On 30 July 2018 the Respondents laid criminal charges against the Appellants and their members. The situation became “so dire and threatening” that the Respondents’ attorney interrupted his sick leave to assist. Still, however, the court was not approached for relief. The attorney again consulted with the Respondents and on 20 August 2018 wrote a letter to the MEC, requesting that the impasse be resolved within five days. On 29 August 2018 the Respondents attended to a meeting with their attorney for the preparation and drafting of “Court papers”.[10] Before these “court papers” could be finalised, the Appellants allegedly demanded occupation of the offices of one of the respondent taxi associations as well as initiating violent behaviour towards the Respondents.

[13] Instead of proceeding with court action, the Respondents requested yet another meeting with the MEC. On 14 September 2018 the Appellants went to the offices of one of the respondent taxi associations and secured the doors with chains. The Respondents thereafter had another meeting with their attorney, after which the attorney wrote a further letter to the Appellants, again requesting them to desist from their behaviour towards the Respondents.

[14] Eventually application papers were drafted and finalized on 27 September. The application was issued on 28 September, to be heard on 16 October 2018 (more than a year after complaints against the Appellants were first raised).

[15] It is clear from the chronology of facts and events summarised above that the discord between the two factions of taxi associations had been brewing for a lengthy period. The respondent taxi associations became dissatisfied with the Appellants’ alleged illegal conduct more than a year prior to the launching of the application. Attempts to involve government departments and officials were clearly not bringing a solution to the situation. In fact, the actions complained of by the Respondents on their version intensified over time. But even when the situation turned violent, the Respondents and/or their attorney chose not to approach the court. Mr Khang for the Respondents submitted that, as court applications are costly it should be the last resort. And, as long as an applicant can give an account of the steps taken to resolve a matter prior to coming to court, urgency will be established.

[16] In as far as it became necessary to approach the court for relief, that step should have been taken weeks, if not months, earlier. It should have been clear that writing of letters and holding meetings do not have the desired effect. The Respondents and their attorney delayed approaching the Court for relief and thus themselves created any urgency there may have been. The Respondents main complaints related to the alleged illegal use of certain routes by the Appellants without them possessing the necessary permits or licences, as well as the development of an illegal taxi rank. The majority of prayers in the Notice of Motion dealt with these issues. Occupation of the offices of one of the respondent taxi associations were but the latest of the Appellants’ alleged illegal and/or unacceptable acts, the proverbial final straw. The need for a court application arose much sooner.

[17] The court a quo should have found that the Respondents had failed to make out a proper case for urgency; alternatively, that they themselves had

created any urgency there may have been. The application should have been struck from the roll. It would then have been open to the Respondents to approach the court again following normal time periods and with due compliance with relevant court rules and practices. I am of the view that striking the matter from the roll was in the circumstances preferable to dismissing the application all together due to the lack of urgency.

[18] In summary then: the court a quo erred in dealing with the matter on the urgent roll and by engaging with the merits of the application. The appeal must succeed for that reason. Consequently, I deem it unnecessary to consider the other grounds of appeal raised by the Appellants.

COSTS

[19] There is no reason why the Respondents as losing parties in the appeal should not be held responsible for the costs of the appeal.

ORDER

[20] In the premises, I would issue the following orders:

1. The appeal is upheld;

2. The order of the court a quo is set aside and replaced with the following:

“The application is struck from the roll with costs.”

3. The First to Fifteenth Respondents are to pay the costs of the appeal jointly and severally, the one paying the other to be absolved.

WRIGHT, AJ

I concur.

LOUBSER, J

VAN RHYN, AJ

For the Appellants: Adv. S. Sethene

Instructed by: Mashala Komana Masekela Attorneys

c/o EG Cooper Majiedt Inc

Bloemfontein

For the First to Fifteenth Respondents: Mr M. Khang

Mphafi Khang Inc

[1] These other taxi associations were cited as the Welkom United Taxi Association and the Kgatelopele Taxi Association respectively.

[2] The Member of the Executive Council of the Free State Department of Police, Roads and Transport (“the MEC”), the Free State Provincial Regulatory Authority and the Free State Transport Registrar.

[3] The First to Fifteenth Respondents in the appeal.

[4] 1977 (4) SA 135 (W) at 139 F – 140 A.

[5] Prayer 3 reads: “That the 1st and 2nd Respondents and their respective members be ordered to restore, immediately, the 9th to 15th Applicants’ peaceful and undisturbed possession of their offices situated at MEDEX BUILDING, 4th Floor, Room 16, WELKOM with immediate effect”. The court a quo granted such an order.

[6] The Respondent’s deponent himself used the phrase “on or about a date that I cannot recall”. This phrasing was repeated several times in the founding affidavit.

[7] These were routes for which the Respondents at all relevant times held valid permits and/or licences.

[8] The meeting was held on a date which the Respondents’ deponent could not recall.

[9] This is the first date specifically mentioned by the Respondents in the founding affidavit.

[10] In as far as court action was contemplated already at that stage, it remains unexplained why no application was issued at the time.