Tshwaing United Taxi Association and Another v MEC for the Transport and Public Works, North-West Provincial Government and Another (536/04) [2004] ZANWHC 20 (1 September 2004)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.: 536/04

In the matter between:

TSHWAING UNITED TAXI ASSOCIATION 1st APPLICANT

BOPHIRIMA LONG DISTANCE TAXI

ASSOCIATION 2ndAPPLICANT

AND

THE MEMBER OF THE EXECUTIVE

COMMITTEE FOR TRANSPORT

AND PUBLIC WORKS NORTH

WEST PROVINCIAL GOVERNMENT 1st RESPONDENT

LESELE KOMANE TRADING AS MANTELLA

TRANSPORT SERVICES 2ndRESPONDENT

MMABATHO

MOKGOATLHENG AJ:

JUDGMENT

MOKGOATLHENG AJ:

Introduction

[1] This is an application in terms of Rule 6(2) wherein the Applicants sought an order in the following terms:

1. That the first Respondent be ordered to remove the operation of the tender bus from the routes in which the Applicant’s members are operating their taxi-type transport which routes are Mafikeng/Kraaipan/Khunuana and Delareyville.

2. That the order in prayer two(2) above operate as an interim order pending the finalisation of the review application to be instituted by the Applicant within twenty (20) court days of the granting of this order.

3. That the first Respondent pays the cost of the application.

4. That the second Respondent pays the cost of the application jointly and severally with the first Respondent in the event that the second Respondent opposes the relief sought.

Background Facts

[2] The Applicants are Taxi Associations as determined by regulations promulgated in terms of section 7A(19) of the Road and Transportation Act 74 of 1977.

[3] The Applicant’s members ferry and transport passengers between Delareyville its environs and Mafikeng. The Applicants allege that their members have conducted their business operations unhindered on these routes for a considerable period of time without competition.

[3] During December 2003, the Applicant’s members became aware that the second Respondent was conducting a bus service on the Delareyville environs and Mafikeng. The second Respondent was conducting the bus service without the relevant permit issued by the North West Province Department of Transport.

[4] The Applicants convened a meeting on 4 December 2003 which was attended by the first and second Respondents. At this meeting, the second Respondent explained that he had a contract with the North West Department of Transport to ferry school children within the confines of the routes plied by the Applicants.

[5] It transpired that the second Respondent was authorised to conduct this service through a letter issued by the first Respondent. The Applicant’s contend that the second Respondent during school holidays operated its bus service on the routes allocated to the Applicants.

[6] The Applicants resolved that the second Respondent should forthwith stop operating its bus service. The Applicants had investigated the status of the second Respondent and the circumstances leading to it operating on the same routes as the Applicants members.

[7] The Applicants discovered that:

(a) the second Respondent was awarded a tender by the North West Tender Board to transport “farm children for the rural access pilot project” Department of Transport North West Province.

(b) the second Respondent was issued with a temporary permit to operate a bus service on the same routes as the Applicant’s members.

(c) the second Respondent had leased a bus from Mmabatho Bus Service to conduct his operations.

[8] The Applicants advised the first Respondent that he had unprocedurally issued a permit to the second Respondent, that the second Respondent should forthwith stop operating on the same routes as the Applicant’s members; that the Applicant’s members were being prejudiced by the second Respondent’s conduct.

[9] The Department of Transport North West on 10 February 2004 advised the Applicants that the body charged with the issuing of permits or operating licenses to conduct bus or taxi transport services is;

The Operating Licensing Board

The Secretary of the Board

(Ms Dineo Ditlhareng)

P/Bag x2080

2735

TEL NO.: 018 387 4754

FAX NO.: 018 387 4759.

[10] The Applicants subsequently discovered through a newspaper report, that the second Respondent financed by Standard Bank purchased two buses to convey school children to and from Vryburg and Mafikeng and to also convey commuters on the same routes operated by the Applicant’s members.

The Applicants contend that tender 17W101/03 was published by the Department of Transport North West. The terms of the tender did not invite the public to tender to convey commuters on the areas of Mafikeng, Kraaipan and Khunuana routes. The Applicants are against the second Respondent conveying working commuters on routes allocated to the Applicant’s members.

Reasons for Urgency

[11]

(a) The Applicant’s members rights are being infringed.

(b) The Applicant’s members motor vehicles are not operating.

(c) The Applicant’s members have no work, their livelihood is at stake.

(d) The Applicant’s members have no other source of income.

(e) The Applicant’s members cannot recommence their taxi operations on the same routes without a court order.

(f) If this application is heard in the normal course the effect on the Applicant’s members businesses would be devastating. The Applicant’s members would have to shut down their business operations for at least two months.

(g) The Respondents would not be prejudiced if an order is granted, the Respondents prejudice is negligible as compared to the Applicants if the order is not granted.

Reasons for Application

[12] The Applicant’s members are duly authorised to operate the routes which the Department of Transport has decided to allocate to the second Respondent.

The second Respondent’s bus which operates in the Mafikeng/Kraaipan/Khunoana route is competing unfairly with Applicant’s members as the second Respondent is able to charge lower tariffs as it is subsidised by the Department of Transport.

[13] The decision taken by the Department of Transport, that is to issue a permit to the second Respondent to operate on the same routes as the Applicants’ members has incited the community to attack Applicants’ members. The North West Department of Transport decision was not made judiciously after considering its legal implications, which are the following:-

The rights of the taxi industry are impaired;

The Applicants’ members pays taxes;

Promotes the element of conflict between the community and the Applicants’ members;

The Applicants’ members business will shut down and the members will not be able to maintain their families.

The Applicants’ members employees will lose their jobs and this will add to the unemployment rate in the province; and

The involvement of chiefs in the matter means chiefs are, now involved in the administration of the province.

The Second Respondent’s Case

[14] The second Respondent is the sole member of Mantella Trading 624CC a close corporation duly incorporation in terms of the Close Corporation Act no. 69 of 1984 with registration number 2003/057442/23 with its registered business address at 71 Scholtz Street, Lichtenburg, North West.

[15] On 11 August 2003 the North West Tender Board invited tenders under tender no NW 101/03 for the transportation of farm school children for the rural access pilot project of the Department of Transport North West. The second Respondent submitted a tender in response to the invitation to the abovementioned tender. The second Respondent was awarded the tender authorising the second Respondent to operate on the route 5 between Vryburg and Mafikeng and to operate three busses thereon.

[16] The tender in respect of route 5 is awarded for a period of (5) five years and relates to transportation of school children. The tender in respect of route 8 relates to the route between Khunuoane/Kraaipan/Mafikeng in respect of three buses and for a period of (5) five years commencing form December 2003 and related to public transport for the rural access project of the Department of Transport.

[17] The second Respondent after being awarded the tender applied for finance with Stannic, Absa and Peoples Bank in order to purchase buses. Whilst the applications for finance were pending the second Respondent leased a bus from Aldo Coaches at the rate of R24 000.00 per month and also applied for a road carrier permit from the Department of Transport. This permit was issued on 4 December 2003.

On 3 December 2003 a certain B Machauisa a member of one of the Applicants supported by other Applicant members prevented the second Respondent’s bus from operating on route 8. The bus was confiscated.

On 4 December 2003 the second Respondent attended a meeting attended by the Applicants, the Department of Transport, SAP Services and the Traffic Department regarding the issue that the second Respondent was operating on route 5 and 8 without a valid permit. The meeting resolved that the second Respondent should obtain the requisite road carrier permit. The second Respondent on 4 December 2003 was issued with the relevant permit, the second Respondent’s bus was released by the Traffic Department, and the second Respondent resumed operating.

[18] On 11 December 2003 B Machuisa and his supporters unlawfully prevented the second Respondent from operating on route 8. Members of the local community threatened to prevent the Applicant’s members from operating their taxi businesses should they further prevent the second Respondent from conducting his operations peacefully on route 8.

[19] The community benefits from the second Respondent’s operation in that the tariff charged in respect of transportation from Kraaipan/Khunuoana/Mafikeng is less than what is charged by the Applicants’ members. The second Respondent in January 2004 leased a bus from the North West Star (Pty) on a monthly rental of R11 665.00 in respect of route 8. On 11 March 2004 the second Respondent took delivery of three Scania F94 buses valued at 2.8 million Rand, financed by Standard Bank.

[20] On 10 February 2004 B Machuisa and his supporters prevented the second Respondent operating by blocking the road with their vehicles. The South African Police Service was contacted and they rescued the second Respondent’s employees. The second Respondent thereafter laid criminal charges against B Machuisa and others. B Machuisa and one other person were arrested and a criminal prosecution is proceeding.

[21] The second Respondent contends that the Applicant and its members have not registered routes 5 and 8 with the Department of Transport as their exclusive operational routes. The Registrar of the Department of Transport has confirmed that the Applicants have not registered the Khunuoana/Mafikeng route, that is route 5 and 8 as the routes in which their members will operate in terms of section 7A(19) of the Road Transportation Act no 74 of 1977.

The second Respondent contends that it is not engaging in unlawful competition with the Applicants. The Department of Transport was requested by the local community to institute subsidised transport on their behalf. The Department of Transport deemed it fit and necessary to introduce such a pilot scheme for the benefit of the local community. There is a demand for such a service and it is beneficial to the community.

Second Respondent’s Points in Limine

[22] The second Respondent contends that the Applicants lack locus standi because they were not associations as contemplated in Rule 14 nor are they empowered in terms of the same Rule 14 to institute legal proceedings.

This objection is without merit. The Applicants are empowered in terms of their constitutions to launch these proceedings. The contention that the deponents to the Applicant’s founding affidavits lack authority to, and are not duly authorised to launch these proceedings is also without merit as both deponents state that they are chair persons of the Applicants, which are taxi associations as envisaged by the regulations promulgated in terms of section 7(a) 19 of the Road Transportation Act no 74 of 1977, namely the North West extra ordinary provincial Gazette no. 444 volume 243 dated the 18/3/2000.

[23] Further as regards the contention by the second Respondent that it is irregular for the deponents to the Applicants founding affidavits to depose and attest to the same affidavit on behalf of the first and second Respondents, this objection is ill conceived as there is no civil law impediment in law precluding this procedure.

Non Joinder and Wrong Relief

[24] The second Respondent contends that the North West Tender Board should have been joined in this application as it is its decision to award the tender to the second Respondent which is the subject of this application.

The second Respondent contends further that the Applicants should have launched a review application for the reviewing and setting aside of the decision of the North West Tender Board to award the tender to the second Respondent. The North West Tender Board is a public body which performs an administrative function in terms of section 6 of the Promotion of Administrative Justice Act 3 of 2000, that the Applicants should have instituted review proceedings in terms of section 6 of the said Act to review the decision of the North West Tender Board.

Evaluation of Issues

[25] The Applicants seek an order that the first Respondent be ordered to remove the operation of the tender bus of the second Respondent from the routes in which the Applicants members are operating their taxi type transport which routes are Mafikeng/Kraaipan/Khunuoana and Delareyville.

The Applicants in their founding affidavit assail the decision taken by the Department of Transport to allocate to the second Respondent the right to operate a bus service on route 8, regarding the conveyance of working commuters. This decision by the Department of Transport has prejudicial effects on the business operations of the Applicants’ members as mentioned above.

[26] The Applicants contend that the North West Tender Board did not in, its terms and provisions invite tenders in respect of the conveyance of working commuters but the tender was restricted to the transportation of farm school children. The Applicants contend that they are not against the public transportation provided in respect of farm school children but are against the second Respondent conveyance of working commuters being ferried on the same route that is route 8, to and from Kraaipan/Khunuoana/Delareyville and Mafikeng.

The contention is therefore that the North West Tender Board in awarding the second Respondent the right to convey ordinary working commuters from Kraaipan/Khunuoana to and from Mafikeng acted unlawfully as the Tender Board was not authorised to grant such right, the Tender Board was restricted in terms of its published tender to granting the preferred tenderer the right to ferry farm school children. It is patent therefore that the Applicants are assailing the decision of the North West Tender Board.

[27] The Department of Transport advised the Applicants that the body charged with issuing licences in respect of taxi transport type of business was the Licensing Board situated at Mmabatho. The Department of Transport’s stamp appears on the temporary permit issued to the second Respondent authorising the second Respondent to convey passengers and organised parties from Kraaipan/Khunuoana to and from Mafikeng.

[28] In my view, it was incumbent and pertinent that the applicants should have joined the North West Tender Board and the Operating Licensing Board.

The failure to join the above parties whom the Applicants knew were instrumental and decisive in the decision which resulted in the Applicant’s members problems, is fatal and viates this application. In any event the Court cannot grant an order against the second Respondent preventing it from operating its buses on route 8 as it is authorised by a competent authority the Department of Transport to ply such routes.

[29] The Applicants have not provided prove that routes 5 or 8 have been allocated to its members by the Department of Transport to the exclusion of all other competition or persons. The Applicants were obliged to cite the Operating Licensing Board because they allege that the issuing of the permit authorising the second Respondent to operate its business on route 8 was unlawful. Further the Applicants were obliged to cite the North West Tender Board because they allege that it awarded the second Respondent a tender it was not authorised to in terms of its mandate and provisions. The first Respondent has no authority in law to order the second Respondent or to stop the second Respondent from operating its bus transportation business.

[30] In the premises the Applicants non joinder of the Tender Board and the Operating Licensing Board was fatal to the Applicants case. Alternatively the Applicants should have instituted review proceedings against the North West Tender Board and the Department of Trade and Industry.

The Court is of the view that no case for urgency has been established, the reasons advanced is support thereof are premised on the assumption that the second Respondent is operating illegally. The Applicants launched their application on 3 May 2004, yet the events which gave rise to this application occurred during or in December 2003. The Court is of the view that the emergency is self created.

[31] In the premises the application is dismissed with costs.

____________________

R D MOKGAOTLHENG

ACTING JUDGE OF THE HIGH COURT

DATE OF HEARING : 30 SEPTEMBER 2004

DATE OF JUDGMENT : __ NOVEMBER 2004

Counsel for the Applicants : Mr Sefora

Counsel for 1st & 2nd Respondents : Mrs Swiegellaar

Attorneys for the Applicants : Sefora Attorneys

Attorneys for the 2nd Respondent : A K Ahmed

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