Marikana Lesotho Long Distance Taxi Association and Others v Hari and Others (321/2004) [2004] ZANWHC 43 (15 December 2004)

CASE NO 321\2004

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE MARIKANA LESOTHO LONG DISTANCE 1ST APPLICANT

TAXI ASSOCIATION

NATHANIEL JUPI MABALE 2ND APPLICANT

MARTIN GOITSEMANG KHUNOU 3RD APPLICANT

DIKOBE FRANS LETEBELE 4TH APPLICANT

ALFRED MPAJU KOLE 5TH APPLICANT

KINGS JOHANNES PETLELE 6TH APPLICANT

PHATODI ADAM MONISI 7TH APPLICANT

MPAMPA CARL MOLOTSANE 8TH APPLICANT

MONAGENG ELIAS TSHWAGONG 9TH APPLICANT

ERNEST MANIKI LETSOKO 10TH APPLICANT

and

SOLOMON HARI 1ST RESPONDENT

MISHACK NGOMA 2ND RESPONDENT

JOHN SKALK 3RD RESPONDENT

MOLEFI MPUDI 4TH RESPONDENT

RICHARD NTUMZELA 5TH RESPONDENT

GLEN SETUKE 6TH RESPONDENT

ANANIAS MATHEBULA 7TH RESPONDENT

MOTLHANKE EAZY TLADI 8TH REPONSDENT

BTA PLATINUM CHROME TAXI ASSOCIAITON 9TH RESPONDENT

MMABATHO

FOR THE APPLICANTS : ADV C DA SILVA

FOR THE RESPONDENTS : ADV P H J PISTOR

DATE OF HEARING : 18 NOVEMBER 2004

DATE OF JUDGMENT : 15 DECEMBER 2004

J U D G M E N T

______________________________________________________

LEEUW J:

INTRODUCTION:

[1] The Applicants and the Respondents are all members of a local taxi association known as Bleskop Taxi Association.

The Applicants approached this Court seeking an order in the

following terms of the Notice of Motion:

“1. That pending the institution of an action for a final interdict by the applicants against the respondents, an interim interdict do issue in the following terms:

1.1 That pending the grant of valid permits entitling the respondents to undertake cross-border road transport, the respondents be interdicted and restrained from undertaking cross-border road transport in any manner whatsoever.

1.2 An order interdicting and restraining the respondents from assaulting, threatening, intimidating and/or using abusive or derogatory language to the applicants, their drivers or their passengers in any manner whatsoever.

An order interdicting and restraining the respondents from interfering in the applicants’ activities as taxi operators in any manner whatsoever.

An order interdicting and restraining the respondents from precluding the applicants from using the various taxi ranks and platforms thereon.

An order interdicting and restraining the respondents from blocking the applicants’ taxis and removing any passengers from the applicants’ taxis.

That applicants are directed to institute an action for a final interdict against the respondents within one month of the grant of the interim interdict referred to in paragraph 1 above.

That the respondents be directed to pay the costs of this application on the attorney and client scale, the one paying the other to be absolved.

4. Further and/or alternative relief.”

The Facts:

[2] The Applicants are also members of the Marikana Lesotho Long Distance Taxi Association (The First Applicant) and are holders of temporary permits issued to them by the Cross-Border Road Transport Agency in accordance with section 25 of the Cross-Border Road Transport Act No 4 of 1998 (The Cross-Border Road Transport Act). They are authorized to transport passengers from the Marikana Taxi Rank through a route which goes past several towns through to the Republic of South Africa\Lesotho border at the Maseru Bridge border crossing into Maseru and back.

[3] The Respondents, in addition to their membership with the Bleskop Taxi Association, are also members of the BTA Platinum Chrome Taxi Association, but aver that it is not a universtitas persona in view of the fact that they have not adopted any constitution.

[4] The Respondents admit that they conduct a long distance taxi business but that unlike the Applicants, they do not cross the Republic of South Africa\Lesotho border but drop off their passengers on the South African side of the border.

[5] The Respondents admit that they conveyed passengers from the mines in Rustenburg who intended crossing over or who were in transit to Lesotho and off-loaded them at Ladybrand, which is a short distance from the Republic of South Africa\Lesotho Border.

[6] According to the Respondents, they were requested to provide the service by the transport committee of the Western Platinum Mines near Rustenburg, and further entered into an agreement with the Johannesburg OFS Long Distance Taxi Association (JOFELDTA) wherein they each acknowledged each other’s right to transport passengers from Rustenburg to the Republic of South Africa\Lesotho Border, these passengers would be transported further into Lesotho by the Lesotho taxi operators.

[7] They were conducting the Long Distance Taxi Operation on the strength of temporary permits obtained from the Department of Transport, which permits allowed or permitted them to transport passengers to the Republic of South Africa\Lesotho Border.

[8] The permit issued would normally reflect the names of the passengers to be conveyed, the route and the taxi operators, and the transport fee would be collected from their agent who is employed by them and uses a caravan as a place from where the money for transport is paid. The temporary permit would then be destroyed on expiry thereof.

[9] The Applicants allege, in their founding papers, that the Respondents are conducting cross-border road transport without being issued with valid permits and are therefore committing an offence.

[10] They further allege that the Respondents have been interfering with the smooth and peaceful conduct of their taxi industry in that from the 4th September 2003, they assaulted and intimidated their members and drivers and have off-loaded passengers from their taxis to the extent of hiring “hit men” who had been contracted to kill them. It is for these reasons that they approached this court for a temporary interdict restraining the Respondents from continuing with their unlawful conduct.

[11] The Respondents deny involvement in the unlawful activities levelled against them by the Applicants, but aver that they conduct a long distance taxi operation and claim to have received approval for such operation from the Bleskop Taxi Association. The Respondents deny conducting cross-border road transportation without a temporary permit.

Were the Respondents conducting cross-border road transport operation?

[12] The Applicants allege that the Respondents are conducting cross-border transportation in that:

They actively advertise that they are authorized to convey passengers to Maseru by distributing the following translated advertisement:

“All taxis bearing this emblem costs a R100,00 (sic) to Maseru, Ficksburg, Van Rooi, etc etc” which advertisement displays the Respondents sign “JOFELDTA” or “BTA Platinum Chrome” and their cellular phone numbers;

They have also acquired a caravan which bears the aforementioned advertisements and receive their fee in a similar procedure adopted by the Applicants.

[13] Counsel for the Applicants, in his oral submissions, stated that the Respondents fell within the purview of this definition cross-border road transport in view of the fact that they transport passengers to Ladybrand which is a few kilometres to the RSA-Lesotho Boarder. He could not provide any authority to substantiate this submission.

[14] The Respondents do not dispute the fact that they advertise and collect fares in a similar way as the Applicants, which advertisement discloses that they convey passengers to Maseru, which is across the Republic of South Africa\Lesotho Border.

[15] It is also not in dispute that the Respondents do no possess cross-border road transport permits. They in fact allege that they are conducting long distance taxi business, having been permitted to do so by the Bleskop Taxi Association in writing and that they were issued with temporary permits by the Department of Transport in respect of each and every trip undertaken. A copy of such a permit, issued by the Department of Transport, indicates that it was issued in terms of and subject to the provisions of the Road Transportation Act 74 of 1977, (Road Transportation Act, 1977) and refers to a cross-border permit.

[16] Glen Setuke, who deposed to the Answering Affidavit on behalf of the Respondents, stated the following with regard to the passengers they transport from Rustenburg to the Republic of South Africa\Lesotho Border:

“19.22 In this regard, I have to state that Maseru is substantially less than a kilometre from the South African Border Post and reference to Maseru in this regard is intended to be a reference to the border post.

19.23 The passengers are normally off-loaded at Ladybrand, a short distance from the border post from where they are taken into various areas where they stay in Lesotho by Lesotho taxi operators.”

The Law

[17] Section 1 of the Cross-Border Road Transport Act provides that:

‘cross-border road transport’ means the transport of passengers for reward or the transport of freight to or from the Republic crossing or intending to cross its borders into the territory of another State or in transit across the Republic or the territory of another State with a vehicle on a public road.

[18] The Cross Border Road Transport Agency was established in terms of section 4 of the Cross-Border Road Transport Act, and in terms of section 23 (b) it is the only body authorized to “regulate access to the market by the road transport freight and passenger industry in respect of cross-border road transport by issuing permits.”

[19] Furthermore, section 26 (3) of the Cross-Border Road Transport Act provides that:

“The Regulatory Committee, upon receipt of an application for a temporary permit, may if it is of the opinion that the carrier is providing a service of a permanent nature, request such carrier to apply fir a permanent cross-border road transport permit”

[20] The fact that the Cross-Border Transport Agency is the only body authorized to issue cross-border road transport permits is reaffirmed by the reading of the provisions of the National Land Transport Transition Act No 22 of 2000.

Section 33 (1) thereof provides:

“Subject to subsection (2), no person may operate a road-based public transport service without holding the necessary permit or operating licence, or in case of a special event, a temporary permit issued in terms of section 20 of the Road Transportation Act, 1977 (Act No 74 of 1977) or an authorization obtained or completed in terms of replacing provincial law, for such event.

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 –

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 1988); or

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[21] The Cross-Border Road Transport Act, section 53 (1) thereof, has repealed the Road Transportation Act, 1977 in so far as it is applied in respect of cross-border transport.

[22] Section 20 of the Road Transportation Act of 1977 provides that:

“Any person who desires to undertake road transportation of a temporary nature, shall in the manner prescribed by the regulation, apply to the commission or a competent board for the grant of a temporary road carrier permit authorizing him to undertake such road transportation upon a particular date or in connection with a particular occurrence, and the onus of proving the necessity for the intended road transportation shall be upon the applicant.” (My emphasis) A permit issued in terms of this Act is not a cross-border permit.

[23] From the above, it is evident that a temporary or permanent permit for the purpose of undertaking cross-border road transport, shall be exclusively issued by the Cross-Border Road Transport Agency.

Analyses of issues

[24] Counsel for the Respondents submitted that the Respondents were not conducting cross-border road transport, because they were not conveying passengers across the Republic of South Africa\Lesotho border, but only went up to Ladybrand, which is in the Republic of South Africa.

[25] This is contrary to what Glen Setuke averred in the Answering Affidavits; if one were to consider the manner in which the Respondents advertised themselves, the nature of the permit which referred to a cross-border permit and the fact that they transport passengers who board their taxis for the purpose of proceeding to Lesotho, it becomes evident that the permits issued in terms of the Road Transportation Act of 1977 cannot be valid under the circumstances. The issuing of cross-border road transport permits is the competence of the Cross-Border Transport Agency only. The Respondents are aware of this fact and that is why they have now applied for the correct permits. No explanation was given as to why they had not previously applied for the correct permits and no explanation was given as to why they applied for temporary permits through other authorities other than the Cross-Border Transport Agency.

[26] The Respondents are undertaking cross-border road transport business as defined in section 1 of the Cross-Border Transport Act because through their admissions, they transport passengers for reward from the Republic of South Africa “intending to cross its borders” into the territory of Lesotho, and they do so without a valid permit, and are therefore prohibited from undertaking such business unless they are holders of a valid permit. See Section 25 and Section 40 (1)(a) of the Cross-Border Road Transport Act.

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