Marble Hall Taxi Association v Marble Hall United Taxi Association and Others In re: Main Application between Marble Hall United Taxi Association v Provincial Transport Registrar for Mpumalanga Province and Another (9023/2004) [2006] ZAGPHC 203 (19 May 2006)

IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 9023/2004

DATE: 19/5/2006

NOT REPORTABLE

IN THE MATTER BETWEEN:

MARBLE HALL TAXI ASSOCIATION APPLICANT

AND

MARBLE HALL UNITED TAXI ASSOCIATION 1ST RESPONDENT

THE PROVINCIAL TRANSPORT REGISTRAR

FOR THE MPUMALANGA PROVINCE 2ND RESPONDENT

THE MEMBER OF THE EXECUTIVE COUNCIL

OF THE MPUMALANGA PROVINCE

RESPONSIBLE FOR PUBLIC TRANSPORT 3RD RESPONDENT

IN RE: IN THE MAIN APPLICATION BETWEEN

MARBLE HALL UNITED TAXI ASSOCIATION APPLICANT

THE PROVINCIAL TRANSPORT REGISTRAR FOR

THE MPUMALANGA PROVINCE 1ST RESPONDENT

OF THE MPUMALANGA PROVINCE RESPONSIBLE

FOR PUBLIC TRANSPORT 2ND RESPONDENT

JUDGMENT

PRELLER, J

The applicant applies for an order declaring:

(a) that the applicant has met all the requirements for full registration as a mini bus association in terms of section 110 of the National Land Transport Transition Act 22 of 2000 read with the applicable regulations, that it is entitled to full registration as such and an order directing the first respondent to register the applicant as such,

alternatively

(b) that the applicant meets all the requirements for provisional registration in terms of section 109 of the act read with the applicable regulations, that the applicant is entitled to such registration and an order directing the first respondent to register the applicant provisionally as such,

in the alternative to (a) and (b) above

(c) an order directing the first respondent to notify the applicant of all further steps to be taken by the applicant in order for it to be registered in full as a mini bus taxi association in terms of section 110 of the act, alternatively an order directing the first respondent to notify the applicant which steps have to be taken in order for the applicant to be provisionally registered as such in terms of section 109 of the act.

Before dealing with the merits of the application I need to record that the documents filed on behalf of the applicant are of a very poor standard. The notice of motion was dated 4 April 2004 and when the matter came up for hearing almost two years later the founding papers on the court file still consisted of a very poor faxed copy. The notice of motion was not signed and several of the annexures are wholly or partly illegible. More importantly though annexure "H4" to the founding affidavit, which purports to be a list of the names and addresses of all the members of the applicant, was merely a blank form. It appeared during the hearing that the copy of the said annexure before me differed from the annexures in the possession of counsel for the parties and it seems that they had a list of names which was not in my possession. The document in question purports to be a copy of an annexure to the application for registration that was filed with the first respondent on behalf of the applicant in its application for registration. If that is indeed the document that was filed, that would have been fatal to the application. This point is, however, not dispositive of the application and I do not make anything more of it.

The third applicant is a taxi association that operates from Marble Hall and was joined at its request by order of this court. I mention this because the point was taken in limine by the first respondent that the other taxi associations operating in the area have not been joined and that such non joinder is fatal to its cause.

I was not referred to any provision in the act from which it appears that joinder of the other taxi associations operating in the area would be essential. It seems probable though that the other associations would have an interest that would be directly affected by the outcome of the present application and that they should have been joined.

The first and second respondents furthermore took a point in limine that the order refusing the applicant's application for registration still stands and that in the absence of an order reviewing and setting aside the said decision the order sought by the applicant cannot be granted.

Although it was not clearly the approach of the applicant in its founding affidavit it could perhaps be argued that under the claim for alternative relief the applicant would be entitled to argue that by necessary implication the application includes a prayer for an order reviewing and setting aside the decision by the first respondent which was according to the applicant wrongly taken on the facts available to it.

I prefer not to decide the matter on either of the two points in limine and would rather look at the merits of the application.

In terms of section 54(a) of the act the first respondent is obliged to receive and consider applications for registration or provisional registration of associations based in the province. The province concerned is of course Mpumalanga.

In order to qualify for full registration an association must comply with the requirements of section 57 of the act, which in terms of section 57(a) requires that:

(a) Every member of the association must hold an appropriate operating licence for each vehicle by which the member operates a

public transport service. The first respondent states expressly that no such licence has been issued to any association or member of any association by the Mpumalanga transport authority. It accordingly follows that nobody was at the stage of the signing of the affidavit entitled to full registration as contemplated in section 110 of the act. As far as provisional registration is concerned, section 109 of the act provides that an association may be provisionally registered if it has been in existence for a period not less than the period determined by the MEC by notice in the provincial Gazette. That requirement has been amplified by regulation which requires that the association must have been in existence since 30 June 1997.

(b) The association must have at least twenty members, which number has been fixed by regulation.

(c) An association may not be provisionally registered if its joining fees and membership fees exceed the maximum amounts prescribed by the MEC by notice in the Gazette which according to the answering affidavit has been fixed in the amount of R10 000,00.

(e) The association must have a constitution which must comply with certain requirements.

The above list is not exhaustive of the points raised in the answering affidavit.

The answering affidavit goes on to say that the first respondent was not in any manner notified that the joining fee of the applicant does not exceed R10 000,00. It furthermore states that its constitution does not contain the required provision, that the association does not have a minimum of twenty members and that it was not in existence on 30 June 1997. It is furthermore stated that it does not appear from the application submitted by the applicant that all the members of the applicant have signed the declaration or provided the particulars requested of the form prescribed by the regulations. There has furthermore not been

submitted any proof that all the members have applied for operating licences in respect of each vehicle by means of which the service is operated.

No replying affidavit was filed to dispute the objections raised by the first and second respondents. In as far as a dispute may exist about the points raised by them the application has to be decided on the version of the facts deposed to by the respondents.

It is clear therefore that on the facts before me the applicant has not complied with the requirements of the act and regulations and that the first respondent was quite correct in refusing to register the applicant.

As far as the relief claimed in prayer 3 is concerned the applicant argues that in terms of section 99(1)(e) of the act the first respondent is obliged to assist the applicant in bringing its application in order. The relevant section provides:

"The registrar must take any steps that are reasonably necessary with a view to encouraging associations to register in accordance

with part 12 and this part and provide advice and assistance to enable them to apply successfully for registration."

I was not referred to any authority on the interpretation of this provision and on the steps that the first respondent is obliged to take. What seems clear to me, however, is that it is not for the first respondent to bring the applicant's application in order. In this case the applicant was assisted by attorneys when it submitted its application. The first respondent furthermore annexes letters to its answering affidavit from which it appears that the applicant was inter alia invited to an interview with the first respondent for the purposes of bringing its application in order. The applicant furthermore attended a meeting that was held on 8 May 2001 in order to settle contested routes among all the taxi associations. The applicant was not invited to attend the meeting, presumably because it was not a registered association and when it was asked to submit its routes it was unable to do so upon which the applicant's representatives disrupted the meeting with the result that the business of the meeting could not be achieved.

The act clearly does not require the first respondent to do the applicant's homework for it.

In my view the first respondent quite correctly refused the applicant's application for registration and is entitled to persist

with such refusal until such time as the applicant submits an application that is in compliance with the requirements of the act

and the regulations. I can find in the papers no indication that the first respondent has at any stage failed or refused to render such assistance as could reasonably required from it, to the applicant.

In the result the application cannot succeed.

0rder: The application is dismissed with costs.

F G PRELLER

JUDGE OF THE HIGH COURT

9023-2004

HEARD ON: 14/2/2006

FOR THE APPLICANT: MR J J BOTHA

INSTRUCTED BY: ANNEKE MEYER ATTORNEYS, LYNWOOD GLEN

c/o SANET DE LANGE, PRETORIA

FOR THE 1ST RESPONDENT: MR R BEDHESI

INSTRUCTED BY: STATE ATTORNEY

FOR THE 3RD RESPONDENT: MR A T NCONGWANE

INSTRUCTED BY: MOTLA CONRADIE INC, PRETORIA