Mokgareng Taxi Association and Others v MEC for Transport, North- West Province and Others (CA 521/02) [2003] ZANWHC 2 (23 January 2003)

CA 521/02

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

IN THE MATTER BETWEEN:

MOKGARENG TAXI ASSOCIATION 1ST APPLICANT

MABOTE MOFFAT PAKO 2ND APPLICANT

MEREYITLHE JOSEPH DITSHOMI 3RD APPLICANT

MOTHOWAGAE ISHMAEL MOTSIMINAYANE 4TH APPLICANT

NDAKA STEPHEN NOBULA 5TH APPLICANT

AND

THE MEC FOR TRANSPORT N/W PROVINCE 1ST RESPONDENT

THE LOCAL TRANSPORTATION BOARD 2ND RESPONDENT

K L GAEBETSE 3RD RESPONDENT

G S SEIPOTLI 4TH RESPONDENT

O J MEDUPE 5TH RESPONDENT

G J NOTWANE 6TH RESPONDENT

P G SENOKWANE 7TH RESPONDENT

G H LEBOWA 8TH RESPONDENT

K V BOEMO 9TH RESPONDENT

T A SEGWABE 10TH RESPONDENT

NKABINDE J

MMABATHO

DATE OF HEARING : 29/30 OCTOBER 2002

DATE OF JUDGMENT : 23 JANUARY 2003

FOR THE APPLICANTS : ADV. ZWIEGELAAR

FOR THE RESPONDENTS : ADV. HENDRICKS

JUDGMENT

NKABINDE J: [1] The applicants in this application were the applicants in the application (the main application) in which an interdict was granted against the respondents. In the instant application they sought an order declaring the third to tenth respondents to have failed to comply with the said interdict which was granted by this Court on 13 December 2001. The said order read as follows: “1. THAT it is ordered that any permit or authorities of whatsoever nature granted or issued to any of the Third to Tenth Respondents by or on behalf of the Second Respondent pursuant to application by the Third to Tenth Respondent ..., which application were advertised in the Government Gazette Number 20549 of 22 October 1999, be declared null and void with effect from 13 November 2000 (being the date on which the grant of such permit by the Second Respondent was set aside by the National Transport Commission). THAT Third to Tenth Respondents are interdicted from undertaking any road transportation except under the authority of a valid permit authorising such road transportation; and THAT the 1st and 10th Respondents are ordered to jointly and severally pay the costs of this application the one paying the other to be absolved.”.

NKABINDE J:

[1] The applicants in this application were the applicants in the application (the main application) in which an interdict was granted against the respondents. In the instant application they sought an order declaring the third to tenth respondents to have failed to comply with the said interdict which was granted by this Court on 13 December 2001. The said order read as follows:

“1. THAT it is ordered that any permit or authorities of whatsoever nature granted or issued to any of the Third to Tenth Respondents by or on behalf of the Second Respondent pursuant to application by the Third to Tenth Respondent ..., which application were advertised in the Government Gazette Number 20549 of 22 October 1999, be declared null and void with effect from 13 November 2000 (being the date on which the grant of such permit by the Second Respondent was set aside by the National Transport Commission).

THAT Third to Tenth Respondents are interdicted from undertaking any road transportation except under the authority of a valid permit authorising such road transportation; and

THAT the 1st and 10th Respondents are ordered to jointly and severally pay the costs of this application the one paying the other to be absolved.”.

[2] The applicants further sought an order that the third to tenth respondents be committed to prison for contempt of Court for failing to comply with the said order. The applicants allege that after the granting of an interdict during December 2001 the third to tenth respondents, having been served with the order on 11 February 2002, operated their taxi businesses illegally from and to Taung Taxi Rank along the route next to Taung Station to a place known as Leselong. They alleged, in particular, that the third respondent so operated by means of a Volkswagen combi with registration letters and numbers CKR 523 NW; that the fifth respondent so operated by means of a Nissan E20 combi with registration letters and numbers BGT 499 NW; that the seventh respondent so operated by means of a Toyota combi with registration letters and numbers DLP 647 NW; that the eighth respondent so operated by means of a Volkswagen combi with registration letters and numbers DFB172NW; that the ninth respondent so operated by means of a Toyota Hi-Ace combi with registration letters and numbers CKS 247 NW and that the tenth respondent so operated by means of a Toyota Hi-Ace combi with registration letters and numbers DVY 597 NW. It was alleged further that the third to tenth respondents continued to display on their respective vehicles the permits which were nullified by the order of Court.

[3] The third, fifth, seventh to tenth respondents opposed the granting of such a declaratory order and deposed to answering affidavits during May 2002. They admitted having been served with the order but contended, inter alia, that they did not conduct they taxi businesses illegally on the route in question. The third respondent contended specifically that his taxi broke down during February 2002 and was taken ill. He could not, therefore, operate a taxi business. The fifth, seventh to tenth respondents contented specifically that they operated their taxis with valid temporary permits which authorised their transportation businesses from Matlapaneng, Mase, Leshobo, Mokgareng to Taung Rank and back. The fifth respondent attached copies of valid temporary permits issued to him in respect of a Nissan combi BGT 499 NW for the periods 13 to 26 February 2002, 26 February to 11 March 2002, 11 March to 24 March 2002, 25 March to 7 April 2002, 8 April to 21 April 2002 and 25 April to 08 May 2002. The seventh respondent also attached copies of valid temporary permits issued to him in respect of a Toyota combi CHP 647 NW for the periods 13 to 26 February 2002, 26 February to 11 March 2002, 11 to 24 March 2002, 25 March to 7 April 2002, 8 to 21 April 2002, 25 April to 8 May 2002 and 16 to 29 May 2002. The eighth respondent also attached copies of valid temporary permits issued to him in respect of a Volkswagen combi DJV 172 NW for the periods 19 February to 4 March 2002 and 25 April to 8 May 2002. The ninth respondent attached a copy of a valid temporary permit issued to him in respect of a Toyota combi DVY 597 NW for the period 28 February to 13 March 2002. The tenth respondent attached copies of valid temporary permits issued to him in respect of a Toyota combi CKS 247 NW for the periods 13 to 26 February 2002, 28 February to 13 March 2002, 25 April to 8 May 2002; and in respect of Toyota combi CHP 647 NW issued on 16 May 2002 for 16 to 29 May 2002.

[4] The second applicant attached, inter alia, a confirmatory affidavit of the fifth applicant (Annexure “MMP17") to his replying affidavit. In that annexure the fifth applicant confirmed that the third respondent operated his Volkswagen combi as a taxi on Friday, 29 March 2002 and Saturday, 30 March 2002 at Taung Taxi Rank. The applicants contended therefor that the third respondent failed to comply with the order on 29 and 30 March 2002. It was contented further, as regards the fifth and seventh respondents, that they neglected and/or failed to attach copies of temporary permits for the periods 21 to 25 April 2002 respectively. As regards the eighth respondent it was contented that only one copy of a temporary permit for the periods 19 February to 1 March 2002 was attached. The same was said about the ninth respondent. The applicants contented further that the re-issuing of the said temporary permits by the second respondent was irregular as there was no basis on which such permits could have been granted. The applicants averred further that they were not aware of the fact that the fifth, seventh to tenth respondents were, at the time of launching the application, issued with permits. [5] At the hearing of the application this Court directed that oral evidence be tendered on certain issues with a view to determining whether the third, fifth, seventh to tenth respondents were in contempt of the order and, if so, whether or not such contempt was wilful or mala fide. The matter was postponed to 29 and 30 October 2002 for oral evidence. At the hearing the second applicant testified, inter alia, that himself and the co-applicants possessed public road carrier permits in respect of the route from Leselong to Taung Station as per Annexure “F” (pp 84 and 85) to the main application. I may pause to mention that no mention is made of the names of villages in Annexure “F”, i.e between Leselong and Taung Station Taxi Rank, as is the case with regard to the temporary permits issued to the fifth, seventh to tenth respondents. [6] The second applicant testified further that the third respondent operated his taxi on their route (i.e from Leselong to Taung Station) after the order was served upon him on 11 February 2002. He was not aware, when he was served with the respondents’ answering affidavits, that the fifth , seventh to tenth respondents had been issued with temporary road carrier permits. He testified further in chief that the third respondent stopped operating his taxi due to ill-health but could not say when he ceased to operate.

Under cross-examination he testified that the third respondent stopped after the order was served upon him. Further under cross-examination he testified that the third respondent stopped due to ill-health but that his combi was still operating when he deposed to the founding affidavit during April 2002.

[4] The second applicant attached, inter alia, a confirmatory affidavit of the fifth applicant (Annexure “MMP17") to his replying affidavit. In that annexure the fifth applicant confirmed that the third respondent operated his Volkswagen combi as a taxi on Friday, 29 March 2002 and Saturday, 30 March 2002 at Taung Taxi Rank. The applicants contended therefor that the third respondent failed to comply with the order on 29 and 30 March 2002. It was contented further, as regards the fifth and seventh respondents, that they neglected and/or failed to attach copies of temporary permits for the periods 21 to 25 April 2002 respectively. As regards the eighth respondent it was contented that only one copy of a temporary permit for the periods 19 February to 1 March 2002 was attached. The same was said about the ninth respondent. The applicants contented further that the re-issuing of the said temporary permits by the second respondent was irregular as there was no basis on which such permits could have been granted. The applicants averred further that they were not aware of the fact that the fifth, seventh to tenth respondents were, at the time of launching the application, issued with permits.

[5] At the hearing of the application this Court directed that oral evidence be tendered on certain issues with a view to determining whether the third, fifth, seventh to tenth respondents were in contempt of the order and, if so, whether or not such contempt was wilful or mala fide. The matter was postponed to 29 and 30 October 2002 for oral evidence. At the hearing the second applicant testified, inter alia, that himself and the co-applicants possessed public road carrier permits in respect of the route from Leselong to Taung Station as per Annexure “F” (pp 84 and 85) to the main application. I may pause to mention that no mention is made of the names of villages in Annexure “F”, i.e between Leselong and Taung Station Taxi Rank, as is the case with regard to the temporary permits issued to the fifth, seventh to tenth respondents.

[6] The second applicant testified further that the third respondent operated his taxi on their route (i.e from Leselong to Taung Station) after the order was served upon him on 11 February 2002. He was not aware, when he was served with the respondents’ answering affidavits, that the fifth , seventh to tenth respondents had been issued with temporary road carrier permits. He testified further in chief that the third respondent stopped operating his taxi due to ill-health but could not say when he ceased to operate.

Under cross-examination he testified that the third respondent stopped after the order was served upon him. Further under cross-examination he testified that the third respondent stopped due to ill-health but that his combi was still operating when he deposed to the founding affidavit during April 2002.

[7] As to the fifth respondent the second applicant testified that he (5th respondent) continued to operate his E20 Nissan combi BGT 499 NW after the service of the order on him. Under cross-examination he testified that he was not aware that the fifth respondent had been issued with a temporary permit authorising him to operate his taxi business on the route specified on his permit. He testified further under cross-examination that he had no personal knowledge of the dates on which the fifth respondent operated his taxi illegally. According to him such dates were recorded by the Taxi Marshall who also kept such records. [8] As to the seventh respondent the second applicant testified that he (7th respondent) all along operated his E20 Nissan combi DPM 225 NW. When his counsel put to him that the seventh respondent stated that he operated a Toyota combi CHB 647 NW the second applicant testified that the seventh respondent might have leased his permit because people hired their certificates. Under cross-examination he testified that the permit for the Toyota was leased for the whole of 2002 to a certain Lesego Galeboe. Further under cross-examination he testified that the seventh respondent operated his combi, CLP 647 NW (supposedly CHB 647 NW) through a driver. [9] As to the eighth respondent and ninth respondents the second applicant testified that they (8th and 9th respondents) stopped operating their taxis during 2002 but could not remember the exact dates. He testified that the tenth respondent operated his taxi on the route in question after 11 February 2002. Under cross-examination he testified that he did not know whether the tenth respondent sold his taxi or certificate during 2002. He did not know the date of the sale.

[7] As to the fifth respondent the second applicant testified that he (5th respondent) continued to operate his E20 Nissan combi BGT 499 NW after the service of the order on him. Under cross-examination he testified that he was not aware that the fifth respondent had been issued with a temporary permit authorising him to operate his taxi business on the route specified on his permit. He testified further under cross-examination that he had no personal knowledge of the dates on which the fifth respondent operated his taxi illegally. According to him such dates were recorded by the Taxi Marshall who also kept such records.

[8] As to the seventh respondent the second applicant testified that he (7th respondent) all along operated his E20 Nissan combi DPM 225 NW. When his counsel put to him that the seventh respondent stated that he operated a Toyota combi CHB 647 NW the second applicant testified that the seventh respondent might have leased his permit because people hired their certificates. Under cross-examination he testified that the permit for the Toyota was leased for the whole of 2002 to a certain Lesego Galeboe. Further under cross-examination he testified that the seventh respondent operated his combi, CLP 647 NW (supposedly CHB 647 NW) through a driver.

[9] As to the eighth respondent and ninth respondents the second applicant testified that they (8th and 9th respondents) stopped operating their taxis during 2002 but could not remember the exact dates. He testified that the tenth respondent operated his taxi on the route in question after 11 February 2002. Under cross-examination he testified that he did not know whether the tenth respondent sold his taxi or certificate during 2002. He did not know the date of the sale.

[10] The fifth applicant testified that the third respondent operated a Volkswagen combi until after the Easter weekend during 2002. Under cross-examination he denied having given anyone the week days and dates in his confirmatory affidavit, Annexure “MMP17". He testified further that he did not know whether or not the third respondent had a temporary permit. In re-examination he testified that the third respondent operated his taxi during April 2002 and later testified that the third respondent did not drive his taxi between February 2002 Easter 2002. He testified that the fifth respondent continued to operate his E20 Datsun combi 499 NW. He was not certain about the registration numbers and letters. He testified that seventh respondent still operated his taxis, first a white Toyota and later a white E20 Nissan 225 NW, through a driver. [11] As to the eighth respondent the fifth applicant testified that he (8th respondent) stopped since February 2002. Under cross-examination he testified that he did not verify if the eighth respondent had a temporary permit or not. He testified that the ninth respondent continued to operate his chocolate brown Toyota combi until August 2002. Under cross-examination he testified that the ninth respondent stopped during July -August 2002 and disappeared since September 2002. [12] As to the tenth respondent the fifth applicant testified that he (10th respondent) continued to operate his taxi until August -September 2002. He denied that the tenth respondent’s taxi broke down during May 2002. Under cross-examination he testified that he did not keep any record of dates when the respondents operated

illegally. The applicants close their case.

[10] The fifth applicant testified that the third respondent operated a Volkswagen combi until after the Easter weekend during 2002. Under cross-examination he denied having given anyone the week days and dates in his confirmatory affidavit, Annexure “MMP17". He testified further that he did not know whether or not the third respondent had a temporary permit. In re-examination he testified that the third respondent operated his taxi during April 2002 and later testified that the third respondent did not drive his taxi between February 2002 Easter 2002. He testified that the fifth respondent continued to operate his E20 Datsun combi 499 NW. He was not certain about the registration numbers and letters. He testified that seventh respondent still operated his taxis, first a white Toyota and later a white E20 Nissan 225 NW, through a driver.

[11] As to the eighth respondent the fifth applicant testified that he (8th respondent) stopped since February 2002. Under cross-examination he testified that he did not verify if the eighth respondent had a temporary permit or not. He testified that the ninth respondent continued to operate his chocolate brown Toyota combi until August 2002. Under cross-examination he testified that the ninth respondent stopped during July -August 2002 and disappeared since September 2002.

[12] As to the tenth respondent the fifth applicant testified that he (10th respondent) continued to operate his taxi until August -September 2002. He denied that the tenth respondent’s taxi broke down during May 2002. Under cross-examination he testified that he did not keep any record of dates when the respondents operated

illegally.

The applicants close their case.

[13] The third respondent was not called to testify. The fifth respondent testified that the permit of the second applicant, Annexure “F”, authorised him (2nd applicant) to travel from Taung Station along the Hartswater-Vryburg main road to Leselong, a route different from the respondents’ route. He testified that he was issued with a temporary permit “A1" for the period 21 August to 03 September 2002 in respect of motor vehicle bearing registration letters and numbers BGT 499 NW. He testified further that on 25 January 2002 he attended a meeting at Vryburg together with his co-respondents. At that meeting the Permit Board Council resolved that their old permits be returned and that temporary permits be issued to them. They were told further to apply for permanent permits. They were to renew their temporary permits forthnightly. He was issued with a temporary permit which he renewed until he was issued with the one which expired on 3 September 2002, Annexure “A1". After 3 September 2002 he leased his taxi to Mr Montsho. About the third respondent he testified that he last saw him during February 2002 and that the third respondent is hospitalised in Klerksdorp as he suffers from cancer. According to him, there was never a period when he operated his taxi without a temporary permit. Under cross-examination he testified that he did not have the originals of the temporary permits which were issued to him because whenever he renewed the temporary permits the Permit Board took the original of the old temporary permit. After the Court order was served on him he returned the permit in respect of which the order was granted and was issued with a first temporary permit on 13 February 2002. When questioned about the order dated 20 June 2002, which directed the second respondent not to issue temporary permits to them (respondents), he testified that he only became aware of that order when he tried to renew his temporary permit on 3 September 2002. He testified further under cross-examination that he believed that Montsho used his taxi with a permit as he told him that he would make the necessary changes. In re-examination he testified that in practice taxi owners use their permits on the taxis owned by other people. [14] The seventh respondent testified that he had a permanent road carrier permit which was declared invalid by the order of Court. He reiterated what the fifth respondent testified about with regard to the meeting at Vryburg and the decisions taken thereat. He testified that after returning the invalid permit he was issued with a temporary permit in respect of his Toyota combi CHP 647 NW. He renewed the permit forthnightly until the last permit, Annexure “A2", was issued to him for the period 8 August to 21 August 2002 in respect of his Nissan combi E20 DPM 225 NW which has since been parked as he had no permit. He has since

sold his Toyota combi. Under cross-examination he testified that the originals of the permit were returned to the Board upon each and every renewal. He testified further that he used the E20 Nissan combi during September 2002. [15] The eighth respondent testified that he used to operate his taxi with a permanent permit which was declared invalid by the Court. He confirmed what the fifth and seventh respondents testified about regarding the meeting at Vryburg, the resolution taken thereat and the issuing of temporary permits which were renewable forthnightly. He obtained a temporary permit for the period 25 April to 8 May 2002 but never used it because his vehicle broke down. He never again operated a taxi on the Matlapaneng route. Under cross-examination he testified that when he returned his permanent permit he was issued with a permit for the period 19

February to 4 March 2002 and when he returned it he was re-issued with the one for 24 April to 8 May 2002 which he never used.

[13] The third respondent was not called to testify. The fifth respondent testified that the permit of the second applicant, Annexure “F”, authorised him (2nd applicant) to travel from Taung Station along the Hartswater-Vryburg main road to Leselong, a route different from the respondents’ route. He testified that he was issued with a temporary permit “A1" for the period 21 August to 03 September 2002 in respect of motor vehicle bearing registration letters and numbers BGT 499 NW. He testified further that on 25 January 2002 he attended a meeting at Vryburg together with his co-respondents. At that meeting the Permit Board Council resolved that their old permits be returned and that temporary permits be issued to them. They were told further to apply for permanent permits. They were to renew their temporary permits forthnightly. He was issued with a temporary permit which he renewed until he was issued with the one which expired on 3 September 2002, Annexure “A1". After 3 September 2002 he leased his taxi to Mr Montsho. About the third respondent he testified that he last saw him during February 2002 and that the third respondent is hospitalised in Klerksdorp as he suffers from cancer. According to him, there was never a period when he operated his taxi without a temporary permit. Under cross-examination he testified that he did not have the originals of the temporary permits which were issued to him because whenever he renewed the temporary permits the Permit Board took the original of the old temporary permit. After the Court order was served on him he returned the permit in respect of which the order was granted and was issued with a first temporary permit on 13 February 2002. When questioned about the order dated 20 June 2002, which directed the second respondent not to issue temporary permits to them (respondents), he testified that he only became aware of that order when he tried to renew his temporary permit on 3 September 2002. He testified further under cross-examination that he believed that Montsho used his taxi with a permit as he told him that he would make the necessary changes. In re-examination he testified that in practice taxi owners use their permits on the taxis owned by other people.

[14] The seventh respondent testified that he had a permanent road carrier permit which was declared invalid by the order of Court. He reiterated what the fifth respondent testified about with regard to the meeting at Vryburg and the decisions taken thereat. He testified that after returning the invalid permit he was issued with a temporary permit in respect of his Toyota combi CHP 647 NW. He renewed the permit forthnightly until the last permit, Annexure “A2", was issued to him for the period 8 August to 21 August 2002 in respect of his Nissan combi E20 DPM 225 NW which has since been parked as he had no permit. He has since

sold his Toyota combi. Under cross-examination he testified that the originals of the permit were returned to the Board upon each and every renewal. He testified further that he used the E20 Nissan combi during September 2002.

[15] The eighth respondent testified that he used to operate his taxi with a permanent permit which was declared invalid by the Court. He confirmed what the fifth and seventh respondents testified about regarding the meeting at Vryburg, the resolution taken thereat and the issuing of temporary permits which were renewable forthnightly. He obtained a temporary permit for the period 25 April to 8 May 2002 but never used it because his vehicle broke down. He never again operated a taxi on the Matlapaneng route. Under cross-examination he testified that when he returned his permanent permit he was issued with a permit for the period 19

February to 4 March 2002 and when he returned it he was re-issued with the one for 24 April to 8 May 2002 which he never used.

[16] The ninth respondent testified that he was in possession of a permanent permit which was declared invalid by the Court. He also confirmed what the other respondents testified about with regard to the meeting at Vryburg and the decisions taken thereat. He obtained a temporary permit and operated his taxi under such permit until March 2002 when his taxi broke down. After Easter weekend he sold his taxi. He denied having operated his taxi without a permit. [17] The tenth respondent also testified that the was in possession of a permanent permit which was declared invalid by an order of Court. He returned it to the Permit Board and after the meeting at Vryburg where a decision to issue temporary permits was

taken a temporary permit was issued to him. The last temporary permit was issued to him for the period 25 April to 8 May 2002.

Another permit for the period 16 to 29 May 2002 was erroneously issued on his name by the second respondent in respect of a Toyota combi CHP 647 NW. The respondents closed their case.

[16] The ninth respondent testified that he was in possession of a permanent permit which was declared invalid by the Court. He also confirmed what the other respondents testified about with regard to the meeting at Vryburg and the decisions taken thereat. He obtained a temporary permit and operated his taxi under such permit until March 2002 when his taxi broke down. After Easter weekend he sold his taxi. He denied having operated his taxi without a permit.

[17] The tenth respondent also testified that the was in possession of a permanent permit which was declared invalid by an order of Court. He returned it to the Permit Board and after the meeting at Vryburg where a decision to issue temporary permits was

taken a temporary permit was issued to him. The last temporary permit was issued to him for the period 25 April to 8 May 2002.

Another permit for the period 16 to 29 May 2002 was erroneously issued on his name by the second respondent in respect of a Toyota combi CHP 647 NW.

The respondents closed their case.

[18] The usual and proper method of initiating contempt of court and committal proceedings is by way of Notice of Motion. In such motion proceedings the applicant must, in order to be successful, prove beyond reasonable doubt that the respondent, with full knowledge of the order of Court, acted in a manner which was in conflict with the order of Court. If the applicant proves this, he is prima facie entitled to the relief sought. The respondent can then resist the relief sought. If the respondent so decides, the evidentiary burden would rest upon him to demonstrate his bona fides and the fact that the disobedience of the order was neither wilful or mala fide (see Uncedo Taxi Service Association v Mtwa and Others 1999 (2) SA 495 (ECD) at 501). The remedy sought by the applicants in this kind of proceedings is not easily granted. The applicants are required, inter alia, to set out clearly in their application such grounds as would enable the Court to conclude that the onus resting on the applicants of proving the contempt has been discharged (Waterston v Waterston 1946 WLD 334). [19] I now revert to the facts of the instant matter. In doing so I will confine myself, at this stage, to the question whether there is substance in the allegations made by the applicants that the respondents disobeyed the order in question. If necessary, I will also deal with the next question, whether intention or mala fides to contravene the order was present or not.

[18] The usual and proper method of initiating contempt of court and committal proceedings is by way of Notice of Motion. In such motion proceedings the applicant must, in order to be successful, prove beyond reasonable doubt that the respondent, with full knowledge of the order of Court, acted in a manner which was in conflict with the order of Court. If the applicant proves this, he is prima facie entitled to the relief sought. The respondent can then resist the relief sought. If the respondent so decides, the evidentiary burden would rest upon him to demonstrate his bona fides and the fact that the disobedience of the order was neither wilful or mala fide (see Uncedo Taxi Service Association v Mtwa and Others 1999 (2) SA 495 (ECD) at 501). The remedy sought by the applicants in this kind of proceedings is not easily granted. The applicants are required, inter alia, to set out clearly in their application such grounds as would enable the Court to conclude that the onus resting on the applicants of proving the contempt has been discharged (Waterston v Waterston 1946 WLD 334).

[19] I now revert to the facts of the instant matter. In doing so I will confine myself, at this stage, to the question whether there is substance in the allegations made by the applicants that the respondents disobeyed the order in question. If necessary, I will also deal with the next question, whether intention or mala fides to contravene the order was present or not.

[20] It is quite clear that the respondents had knowledge of the Court order. As I have indicated above, I have to decide whether the respondents acted in breach of the order. Mrs Zwiegelaar, for the applicants, submitted that the respondents, having been served with the order on 11 February 2002, failed to revere it. Mr Hendricks, for the third, fifth, seventh to tenth respondents, contended that his clients did not defy the order. As regards the third respondent Mrs Zwiegelaar submitted, inter alia, that although there was a discrepancy between the testimony of the second and fifth applicants, such a discrepancy was not of a material nature to reject the applicants’ evidence. She submitted further that the applicants have succeeded to prove beyond reasonable doubt that the third respondent operated his taxi during Easter 2002. I do not agree. There are material discrepancies between the evidence of the second and fifth applicants. I will refer to just a few: The case of the applicants against the third respondent seems to rests on what the fifth applicant stated in Annexure “MMP17". The fifth applicant however denied, during cross-examination, that he gave anyone the dates on which the third respondent allegedly failed to revere the order. Further under cross-examination the fifth applicant testified that he did not know whether the third respondent, when he so operated during the Easter weekend, operated with or without a valid temporary permit. In re-examination he testified that the third respondent operated his taxi during April 2002. This clearly contradicts his averments in Annexure “MMP17" to the replying affidavit. Further in re-examination, he testified that the third respondent did not operate his taxi between February Easter 2002. Needless to say, there is clearly no evidence upon which this Court can safely grant the order sought. Accordingly, the applicants have failed to discharge the onus resting upon them in relation to the third respondent.

[21] As regards the fifth respondent Mrs Zwiegelaar submitted that he (5th respondent) should be declared to be in contempt of the order as he operated his taxi without a permit during May, June, July and August 2002. This was clearly not the applicants’ case when they launched their application during or about April 2002. Even assuming that this was the position, the fifth respondent clearly proved, by way of annexed copies to his answering affidavit and uncontroverted oral testimony, that he possessed temporary permits in respect of the route indicated in his permits which is different from the applicants’ route. The second applicant, in any event, testified under cross-examination that he was not aware that the fifth respondent had been issued with temporary permits. He also did not have personal knowledge of the dates when the alleged disobedience took place. He seemed to rely on what the Taxi Marshall had, seemingly, recorded. It is noteworthy that no evidence of such recorded information was placed before this Court. Furthermore, the said Taxi Marshall was not called to testify. It

is remarkable also that the second applicant testified about the fifth respondent having been using his E20 Nissan combi while the fifth applicant testified about the E20 Datsun combi. On the evidence before this Court it cannot safely be said that the fifth respondent disobeyed the order of this Court. Accordingly, the applicants have failed to prove beyond reasonable doubt that the fifth respondent disobeyed the order.

[22] As regards the seventh respondent Mrs Zwiegelaar submitted that he (7th respondent) failed to prove that he was a holder of a valid permit for the periods 7 to 25 April 2002, 9 May to 8 August and for the period after 21 August 2002. The applicants’ case when they launched this application during April 2002 was that the respondents disobeyed the order since 11 February 2002. As I see it, the applicants’ case of the disobedience of the order after April 2002 was made in the replying affidavit. The seventh respondent has in any event proved, even though no onus rested on him, that for the periods 13 to 26 February 2002, 26 February to 11 March 2002, 11 March to 24 March 2002, 25 March to 7 April 2002, 8 to 21 April 2002, 25 April to 8 May 2002 and to 16 to 29 May 2002, he had temporary permits in respect of Toyota combi CHP 647 NW which he later sold. He then operated a Nissan E20 DPM 225 NW for the period stated in Annexure “A2". The evidence of the seventh respondent is supported by the fifth applicant who testified that the seventh respondent first operated a Toyota combi and later an E20 Nissan 225 NW. The second applicant’s testimony was however that the seventh respondent all along operated an E20 Nissan combi DPM 225 NW. He later, in a moment of aberration that their case against the respondents was that they operated illegally, testified that the seventh respondent had leased his permit for the Toyota CHB 647 NW. The second applicant’s blowing hot and cold is mind-boggling. This Court is unable, on the tendered evidence, to find any disobedience on the part of the seventh respondent. The applicants have, accordingly, failed to prove beyond reasonable doubt that the seventh respondent failed to obey the order. [23] As regards the eighth respondent Mrs Zwiegelaar submitted that the eighth respondent’s evidence should be accepted as true and correct in view of the evidence of the fifth applicant that he (8th respondent) stopped operating his taxi during February 2002. It means, therefor, that the eighth respondent did not disobey the order. Accordingly, the applicants have failed to discharge the onus resting upon them vis-a-vis the eighth respondent. Despite the initial submissions Mrs Zwiegelaar submitted that the eighth respondent’s application for a permit might, in itself, have caused the applicants to believe that he (8th respondent) intended to operate his motor vehicle as a taxi. She submitted further that the launching of the application against the eighth respondent was, therefore, justified. A mere application for a permit does not, per se, constitute any wrongdoing or a punishable act. There is no substance in the latter submissions.

[22] As regards the seventh respondent Mrs Zwiegelaar submitted that he (7th respondent) failed to prove that he was a holder of a valid permit for the periods 7 to 25 April 2002, 9 May to 8 August and for the period after 21 August 2002. The applicants’ case when they launched this application during April 2002 was that the respondents disobeyed the order since 11 February 2002. As I see it, the applicants’ case of the disobedience of the order after April 2002 was made in the replying affidavit. The seventh respondent has in any event proved, even though no onus rested on him, that for the periods 13 to 26 February 2002, 26 February to 11 March 2002, 11 March to 24 March 2002, 25 March to 7 April 2002, 8 to 21 April 2002, 25 April to 8 May 2002 and to 16 to 29 May 2002, he had temporary permits in respect of Toyota combi CHP 647 NW which he later sold. He then operated a Nissan E20 DPM 225 NW for the period stated in Annexure “A2". The evidence of the seventh respondent is supported by the fifth applicant who testified that the seventh respondent first operated a Toyota combi and later an E20 Nissan 225 NW. The second applicant’s testimony was however that the seventh respondent all along operated an E20 Nissan combi DPM 225 NW. He later, in a moment of aberration that their case against the respondents was that they operated illegally, testified that the seventh respondent had leased his permit for the Toyota CHB 647 NW. The second applicant’s blowing hot and cold is mind-boggling. This Court is unable, on the tendered evidence, to find any disobedience on the part of the seventh respondent. The applicants have, accordingly, failed to prove beyond reasonable doubt that the seventh respondent failed to obey the order.

[23] As regards the eighth respondent Mrs Zwiegelaar submitted that the eighth respondent’s evidence should be accepted as true and correct in view of the evidence of the fifth applicant that he (8th respondent) stopped operating his taxi during February 2002. It means, therefor, that the eighth respondent did not disobey the order. Accordingly, the applicants have failed to discharge the onus resting upon them vis-a-vis the eighth respondent. Despite the initial submissions Mrs Zwiegelaar submitted that the eighth respondent’s application for a permit might, in itself, have caused the applicants to believe that he (8th respondent) intended to operate his motor vehicle as a taxi. She submitted further that the launching of the application against the eighth respondent was, therefore, justified. A mere application for a permit does not, per se, constitute any wrongdoing or a punishable act. There is no substance in the latter submissions.

[24] As regards the ninth respondent Mrs Zwiegelaar submitted that the applicants have, through the evidence of the fifth applicant, proved that the ninth respondent operated his taxi illegally since 13 March until August/September 2002. The case of the applicants was that the ninth respondent, when the application was launched during April 2002, operated his taxi illegally after 11 February 2002. It is remarkable that the applicants’ case of disobedience, after April 2002, was made in the replying affidavit. The ninth respondent attached a copy of a valid road carrier permit for the period 28 February to 13 March 2002. He testified that when his permit expired during March his taxi broke down. He then sold it after the Easter weekend. This evidence was not challenged. The evidence of the applicants in relation to the ninth respondent does not, as a matter of fact, enable this Court to make a finding whether or not the ninth respondent indeed disobeyed the order: The second applicant did not know when, during 2002, did the ninth respondent stop operating his taxi. The fifth applicant testified that he (9th respondent) operated until August 2002. Under cross-examination he testified that the ninth respondent stopped during July/August and later testified that the ninth respondent disappeared since September 2002. Needless to say, there is no evidence upon which this Court can safely find that the ninth respondent disobeyed the order. Accordingly, the applicants have failed to prove beyond reasonable doubt that the ninth respondent acted in contempt of the order.

[25] As regards the tenth respondent Mrs Zwiegelaar submitted that he (10th respondent) failed to prove that he was authorised to operate his taxi for the periods 9 to 15 May and 30 May 2002 until August/September 2002. Counsel seem to have lost sight of the fact that the onus rested first on the applicants to prove beyond reasonable doubt that the tenth respondent indeed disobeyed the order. The case of the applicants against the ten respondents, when the application was launched during April 2002, was that they, including the tenth respondent, illegally operated his Toyota Hi-Ace combi CKS 247 NW since 11 February 2002. It is remarkable that the applicants’ case of disobedience after April 2002 was made in the replying papers. The tenth respondent attached copies of temporary permits to his answering affidavit for the period until May 2002 save for the permits for the period 14 March to 24 April. The second applicant testified that the tenth respondent stopped operating his taxi sine June 2002. This is clearly in line with the tenth respondent’s version that he stopped during May as his taxi

had broken down. The fifth applicant however testified that the tenth respondent operated illegally until August/September 2002.

The fifth applicant testified under cross-examination that he did not keep records of dates when the tenth respondent operated illegally. The second applicant did not know and could therefore not deny the tenth respondent’s testimony that he stopped

operating during May 2002 as his taxi had broken down and that he sold the taxi during May. The fact that the tenth respondent failed to attach the permit for the period 14 March to 24 April 2002 and that he applied for another permit (which was erroneously issued in respect of a Toyota combi CHP 647 NW for the period 16 to 29 May 2002) does not really take the matter any further. The applicants have failed to clearly set out or state facts which would enable this Court to conclude that they have discharged the onus resting on them. [26] An analysis of the evidence reveals a host of unsatisfactory features in the applicants’ case which creates doubt in my mind whether the respondents’ behaviour, on the evidence, has overstepped the threshold of legitimacy. A careful perusal of the papers and reading of the evidence as a whole reveal that the applicants do not really deny that the respondents had temporary permits to conduct their taxi businesses on their route as specified in their permits. What I gather from the applicants’ averments is that they were not aware, when they launched the application, that the respondents had been issued with renewable temporary permits to operate their taxi businesses. [27] Accordingly, the applicants having failed to discharge the onus resting on them to show the disobedience of the Court order by the respondents, the application must fail with costs.

[25] As regards the tenth respondent Mrs Zwiegelaar submitted that he (10th respondent) failed to prove that he was authorised to operate his taxi for the periods 9 to 15 May and 30 May 2002 until August/September 2002. Counsel seem to have lost sight of the fact that the onus rested first on the applicants to prove beyond reasonable doubt that the tenth respondent indeed disobeyed the order. The case of the applicants against the ten respondents, when the application was launched during April 2002, was that they, including the tenth respondent, illegally operated his Toyota Hi-Ace combi CKS 247 NW since 11 February 2002. It is remarkable that the applicants’ case of disobedience after April 2002 was made in the replying papers. The tenth respondent attached copies of temporary permits to his answering affidavit for the period until May 2002 save for the permits for the period 14 March to 24 April. The second applicant testified that the tenth respondent stopped operating his taxi sine June 2002. This is clearly in line with the tenth respondent’s version that he stopped during May as his taxi

had broken down. The fifth applicant however testified that the tenth respondent operated illegally until August/September 2002.

The fifth applicant testified under cross-examination that he did not keep records of dates when the tenth respondent operated illegally. The second applicant did not know and could therefore not deny the tenth respondent’s testimony that he stopped

operating during May 2002 as his taxi had broken down and that he sold the taxi during May. The fact that the tenth respondent failed to attach the permit for the period 14 March to 24 April 2002 and that he applied for another permit (which was erroneously issued in respect of a Toyota combi CHP 647 NW for the period 16 to 29 May 2002) does not really take the matter any further. The applicants have failed to clearly set out or state facts which would enable this Court to conclude that they have discharged the onus resting on them.

[26] An analysis of the evidence reveals a host of unsatisfactory features in the applicants’ case which creates doubt in my mind whether the respondents’ behaviour, on the evidence, has overstepped the threshold of legitimacy. A careful perusal of the papers and reading of the evidence as a whole reveal that the applicants do not really deny that the respondents had temporary permits to conduct their taxi businesses on their route as specified in their permits. What I gather from the applicants’ averments is that they were not aware, when they launched the application, that the respondents had been issued with renewable temporary permits to operate their taxi businesses.

[27] Accordingly, the applicants having failed to discharge the onus resting on them to show the disobedience of the Court order by the respondents, the application must fail with costs.

B.E. NKABINDE JUDGE OF THE HIGH COURT ATTORNEYS FOR THE APPLICANTS : MINCHIN & KELLY ATTORNEYS FOR THE RESPONDENTS : S M MOOKELETSI

B.E. NKABINDE

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPLICANTS : MINCHIN & KELLY

ATTORNEYS FOR THE RESPONDENTS : S M MOOKELETSI