Mzimba v MEC for Transport and Civil Aviation and Another (465/00) [2000] ZANWHC 12 (14 September 2000)

CASE NO. : 465/00

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

IN THE MATTER BETWEEN:

P.W MZIMBA APPLICANT

AND

MEC FOR TRANSPORT AND CIVIL AVIATION 1ST RESPONDENT

CHIEF PROVINCIAL INSPECTOR OF THE

PROVINCIAL TRAFFIC CONTROL

NORTH WEST PROVINCE 2ND RESPONDENT

OPPOSED APPLICATION

NKABINDE J

DATE OF HEARING: 03 AUGUST 2000

DATE OF JUDGMENT : 14 SEPTEMBER 2000

FOR THE APPLICANT : ADV. F.N. MOKHATLA

FOR THE RESPONDENT : ADV. K. CHWARO

NKABINDE J: The applicant had approached this Court on an urgent basis for a rule nisi calling upon the respondents to show cause why his motor vehicle, bearing registration letters and numbers FTH 631 GP, should not be restored to him. It is common cause that- (a) the said motor vehicle was used to convey passengers; (b) the said motor vehicle was seized from the applicant’s driver by duly authorized officer of the North West Traffic Control on 5 July 2000; (c) the driver, when asked by the said officer to produce a carrier permit, produced a document (“B1") entitled “Application for transfer of permit”. The contents of “B1" read as follows: “This is to confirm that an application for transfer of permit was submitted to the board for the issuing of a public road carrier permit. Due to administrative problems we are currently experiencing a delay in the issuing of permits.

Registration number : FTH631GP Permit number : 25365/0 Receipt number : 1165886

Please take note that this letter is only valid for a period not exceeding 60 days from the date of issue. We apologise for the delay and the inconvenience caused. Attached find a copy of a existing authority. (Ps. Accept only original copy without any alterations or erasures.)” Annexure “B1" is signed on behalf of the Deputy Director, M Sojane, by an unknown person.

NKABINDE J: The applicant had approached this Court on an urgent basis for a rule nisi calling upon the respondents to show cause why his motor vehicle, bearing registration letters and numbers FTH 631 GP, should not be restored to him.

It is common cause that-

(a) the said motor vehicle was used to convey passengers;

(b) the said motor vehicle was seized from the applicant’s driver by duly authorized officer of the North West Traffic Control on 5 July 2000;

(c) the driver, when asked by the said officer to produce a carrier permit, produced a document (“B1") entitled “Application for transfer of permit”. The contents of “B1" read as follows:

“This is to confirm that an application for transfer of permit was submitted to the board for the issuing of a public road carrier permit. Due to administrative problems we are currently experiencing a delay in the issuing of permits.

Registration number : FTH631GP Permit number : 25365/0 Receipt number : 1165886

Please take note that this letter is only valid for a period not exceeding 60 days from the date of issue. We apologise for the delay and the inconvenience caused. Attached find a copy of a existing authority. (Ps. Accept only original copy without any alterations or erasures.)”

Annexure “B1" is signed on behalf of the Deputy Director, M Sojane, by an unknown person.

The applicant further attached two computer print-outs showing route details. One print-out is dated 24 January 2000 and bears registration letters and numbers YBX 15364 under the trade name Kabinde KS: file No. K793 and another dated 5 April 2000 with the same registration letters and numbers but under a trade name Kabande K S: file no. K199. The documents are referred to as “B31" and “B2", respectively. Furthermore, the applicant has attached a receipt (“B32"), to prove that he has paid for the transfer of the permit. The following, inter alia, appear on the receipt: “This receipt does not authorize the conveyance of passengers. Application(s) submitted to be considered by the Board ID 660603 5374 089 Mzimba W P Transfer of permit R200.00.” The receipt is signed by R Molefe. The respondent opposed the application on the basis firstly, that the application was not urgent and secondly, that the document referred to as “B1" is not a carrier certificate or permit but a mere application for the transfer of a permit. Before dealing with the argument it is convenient to briefly consider the relevant law regulating Road Transportation. The applicant is a person whose business is to convey persons for reward. Such conveyance is regulated by the Road Transportation Act 74 of 1977 (“The Act”). In terms of s. 13 read with s. 1 of the Act such carrier must have a permit duly issued by none other than the Commission or the Board. Failure to produce such a permit upon demand by an authorised officer constitutes an offence (s. 31 (a) of the Act). As to the urgency, Mr Chwaro argued that the applicant has taken two weeks before approaching this Court on an urgent basis and that commercial urgency is not a ground for an urgent relief.

The applicant further attached two computer print-outs showing route details. One print-out is dated 24 January 2000 and bears registration letters and numbers YBX 15364 under the trade name Kabinde KS: file No. K793 and another dated 5 April 2000 with the same registration letters and numbers but under a trade name Kabande K S: file no. K199. The documents are referred to as “B31" and “B2", respectively. Furthermore, the applicant has attached a receipt (“B32"), to prove that he has paid for the transfer of the permit. The following, inter alia, appear on the receipt:

“This receipt does not authorize the conveyance of passengers. Application(s) submitted to be considered by the Board ID 660603 5374 089 Mzimba W P Transfer of permit R200.00.”

The receipt is signed by R Molefe.

The respondent opposed the application on the basis firstly, that the application was not urgent and secondly, that the document referred to as “B1" is not a carrier certificate or permit but a mere application for the transfer of a permit.

Before dealing with the argument it is convenient to briefly consider the relevant law regulating Road Transportation. The applicant is a person whose business is to convey persons for reward. Such conveyance is regulated by the Road Transportation Act 74 of 1977 (“The Act”). In terms of s. 13 read with s. 1 of the Act such carrier must have a permit duly issued by none other than the Commission or the Board. Failure to produce such a permit upon demand by an authorised officer constitutes an offence (s. 31 (a) of the Act).

As to the urgency, Mr Chwaro argued that the applicant has taken two weeks before approaching this Court on an urgent basis and that commercial urgency is not a ground for an urgent relief.

Upon the reading of the papers it became evident that the applicant had taken necessary steps to recover his motor vehicle. There are no facts indicating any dilatoriness on his part. The delay, if any, should be attributed to the officials of the respondents. As to the question whether the applicant was entitled to approach this Court on a commercial urgency or not, I was satisfied that the circumstances of this case do justify an invocation of the Uniform Rule of Court 6 (12) no less than any other interests (See 20th Century Fox Film Corp v Black Films 1982 (3) SA 582 (W) at 586). It was for these reasons that I enrolled the matter and heard it as one of urgency. I now turn to consider whether a prima facie case has been made out on the merits. Mrs Mokhatla argued that the contents of “B1" should be read in conjunction with the contents of the said print-outs and receipt to determine whether “B1" is a permit or not. Furthermore, reliance was sought to be placed on the contents of a letter by one W J Van Lingen (attached to the Replying Affidavit) which allegedly confirmed that “B1" authorised the applicant to operate a taxi service. The relevant contents of the letter read as follows: “ According to the record of the permit board, the document that was faxed to me is indeed a true copy. This document do authorizes this person to operate a taxi service from the date of issue for 60 days.” (My underlining).

Upon the reading of the papers it became evident that the applicant had taken necessary steps to recover his motor vehicle. There are no facts indicating any dilatoriness on his part. The delay, if any, should be attributed to the officials of the respondents. As to the question whether the applicant was entitled to approach this Court on a commercial urgency or not, I was satisfied that the circumstances of this case do justify an invocation of the Uniform Rule of Court 6 (12) no less than any other interests (See 20th Century Fox Film Corp v Black Films 1982 (3) SA 582 (W) at 586). It was for these reasons that I enrolled the matter and heard it as one of urgency.

I now turn to consider whether a prima facie case has been made out on the merits. Mrs Mokhatla argued that the contents of “B1" should be read in conjunction with the contents of the said print-outs and receipt to determine whether “B1" is a permit or not. Furthermore, reliance was sought to be placed on the contents of a letter by one W J Van Lingen (attached to the Replying Affidavit) which allegedly confirmed that “B1" authorised the applicant to operate a taxi service. The relevant contents of the letter read as follows:

“ According to the record of the permit board, the document that was faxed to me is indeed a true copy. This document do authorizes this person to operate a taxi service from the date of issue for 60 days.” (My underlining).

I must hasten to mention that the abovementioned letter and annexures “B2", “B31" and “B32" were, save for “B1", not produced when the traffic officer demanded a permit. It is not even clear which document the writer of the abovementioned letter refers to. In any event a proper reading of “B1", even when read in conjunction with the said other documents, does not reveal that ‘B1" is a permit as contemplated in the Act. “B1" speaks for itself: It is an “Application for transfer of permit” which had yet to be determined by the Board. Even assuming that “B1" was an authorisation for the conveyance of passengers, which in my view is not, there is nothing in the papers which indicates to me that the persons who issued and/or signed “B1" are members of the Board or persons duly authorized to issue such authorisation. In the result, I was not satisfied that the applicant had made out a prima facie case for the relief sought. For these reasons I dismissed the application with costs. B.E. NKABINDE JUDGE OF THE HIGH COURT ATTORNEYS FOR THE APPLICANT: M.A. KOENA ATTORNEYS FOR THE RESPONDENT : THE STATE ATTORNEY

I must hasten to mention that the abovementioned letter and annexures “B2", “B31" and “B32" were, save for “B1", not produced when the traffic officer demanded a permit. It is not even clear which document the writer of the abovementioned letter refers to. In any event a proper reading of “B1", even when read in conjunction with the said other documents, does not reveal that ‘B1" is a permit as contemplated in the Act. “B1" speaks for itself: It is an “Application for transfer of permit” which had yet to be determined by the Board. Even assuming that “B1" was an authorisation for the conveyance of passengers, which in my view is not, there is nothing in the papers which indicates to me that the persons who issued and/or signed “B1" are members of the Board or persons duly authorized to issue such authorisation.

In the result, I was not satisfied that the applicant had made out a prima facie case for the relief sought. For these reasons I dismissed the application with costs.

B.E. NKABINDE

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPLICANT: M.A. KOENA

ATTORNEYS FOR THE RESPONDENT : THE STATE ATTORNEY