"Where the holder of a permit sells, transfers (except by way of security for any purpose) or otherwise disposes of the vehicle,
or of the business in respect of which such permit was issued, such permit shall, unless written consent under section 18 has been
endorsed thereon, expire with effect from the date of such sale, transfer or other disposal, and the vendor or transferor, or person
who otherwise disposes of such vehicle, shall return such permit to the Controller".
Section 18 provides that no such permit shall be transferable except with the written consent of the Controller. No such consent was
obtained by the second respondent and it is clear therefore that when the second respondent sold and disposed of vehicle B358 AAN
the permit attaching to that vehicle expired.
When the appellant became aware of the sale of vehicle B 358 AAN he reasoned that the time-slots allotted to that vehicle on the Lobatse
- Gaborone route had,
as he put it, became vacant, and he decided to apply for a permit for one of his vehicles to fill the vacancy.
Section 10(3) of the Act provides that the Controller may also grant a short-term permit if he is satisfied that the demand for such
a short - term permit is urgent. In addition to his application for a new permit to be issued to him the appellant applied also for
an interim short-term permit to cover the same timeslots.
The appellant alleges that he then discovered that the second respondent was illegally using a different vehicle, vehicle B693 ADK,
on the said route, despite the fact that this vehicle's permit was for use on the Gaborone - Moshupa route. This alleged illegality
was reported by the appellant (through his attorney) to Controller and to the Attorney General. The responses he got were far from
satisfactory. The second respondent alleged that he was authorized to sell vehicle B 358 AAN and that he was therefore entitled to
transfer the permit to his other vehicle, vehicle B 693 ADK. There is no provision in the Act to support such an allegation. Section
18 deals with consent by the Controller to transfer a permit, and it is admitted on the papers that the man who consented to the
sale of vehicle B358 AAN did not have authority to consent also to the transfer of its permit.
On 26 June 2003 the second respondent applied for a permit for vehicle B693 ADK and this was allegedly granted. It is also alleged
that a temporary one-month permit was granted for that vehicle on 26 August 2003, followed by a permit valid for 3 months granted
on 24 September 2003. If these permits were necessary it is clear that for a period after 30 May 2003, and until such permits were
granted, the second respondent plied the route illegally, using vehicle B 693 ADK. In several letters written by his attorney the
appellant alerted the Controller to these facts and suggested that the matter be properly investigated. He received no satisfactory
answer to his letters and he believed that his own applications were not being properly and impartially dealt with by the Controller.
In his affidavit in support of his Notice of Motion the appellant alleges that his application for a short-term permit was not dealt
with at all by the Controller. He however did not seek an order from the court compelling the Controller to deal with his application.
The orders he sought are set out in his Notice of Motion as follows:
" 1. That the Controller of Transport be and is hereby held to have
abdicated his statutory duty to make an urgent determination pursuant to the provisions of section 10(3) of the Road Transport (Permits)
Act (Chapter 69:03).
2. That in the exercise of its original jurisdiction to make a decision where a public official tasked with that responsibility has
failed or refused to, the Court hereby grants the Applicant's application for a temporary permit on the Lobatse - Gaborone, Gaborone
-Lobatse route at the times stated in its application for a permit dated 18th June 2003.
That the Controller of Transport be and is hereby ordered and directed to issue the Applicant with the relevant documentary temporary
permit.
4.
That the Applicant be and is hereby given leave to ply the said route on a provisional basis, in terms of the temporary permit aforesaid
until the Department of Transport and Safety issues a "P" permit for the route in terms of section 3 of the Road Transport (Permits) Act [Chapter 69:03]
5.
That the Controller of Transport be and is hereby ordered to investigate the conduct of his officers in terms of the complaint lodged
with him by the Applicant on the 26th June 2003 and all other factors that arose therefrom.
6.
That the Controller of Transport be and is hereby ordered to report the results of his investigation to the Applicant in writing within
a period of thirty (30) days from the date of this Order.
7.
That the 1st Respondent pay the costs of this Application on the legal practitioner to client scale.
8.
That the 2nd and / or the 3rd Respondent be and are hereby ordered to pay the costs of this Application on the legal practitioner to client scale, jointly and
severally with the 1st Respondent only in the event of such party filing any opposing papers to this Application.
As can be seen from the prayers set out in the Notice of Motion the most pressing order sought by the appellant was an order from
the Court granting him a temporary permit.
The appellant's Notice of Motion is dated 7* October 2003. Before bringing his application he had received a letter from the Department
of Road Transport and Safety. The letter is dated 4 July 2003 and reads as follows:
We have noted all the concerns you have raised in your correspondence and we wish to respond as follows:
1.
All applications received by the department are processed for publication in the Botswana Government Gazzette. Applicants will thus
be called to appear a public sitting where their applications will be heard by the Transport Advisory Board. You can be assured that
if your client has paid the required application fee, and has submitted his application, it will be processed.
2.
We cannot issue a temporary permit to your client. This would be in contravention of the Section, 10(3) of the Road Transport (Permits)
Act. Please note that a temporary permit can only be considered where it could be demonstrated that the public could suffer if such
a permit is not issued.
3.
Concerning the issue of purported irregularities on the part of our officers, we can only thank you for such information and hope
that you could continue furnishing us with such information so as proper investigations could be taken. We wish to advise also that
it is your democratic right to report such irregular practice to the Directorate on Corruption and Economic Crime.
We hope this helps to clarify our position."
In response to that letter the appellant's attorney, on the same date namely 4 July 2003, wrote to the Controller stating that the
general public would suffer if a temporary permit was not issued to the appellant. No reply to this letter was received and on 1
August 2003 the appellant, through its attorney, gave notice of an intention to seek a Court order. Thereafter the application was
launched.
In the High Court Dow J. dismissed the application, holding that the Controller had in fact considered, and had rejected, the appellant's
application and that the
appellant should then have lodged an appeal to the Minister in terms of section 10(6) of the Act. This section reads as follows:
"10(6) Any person aggrieved by the grant or refusal of a short-term permit may appeal to the Minister whose decision shall be
final and shall not be questioned in any Court."
The inclusion of the words "and shall not be questioned in any Court" in a statute does not deprive the Court of the power
to review the proceedings of a tribunal where a gross irregularity has occurred in the proceedings before that tribunal. This would
be the case, for example, where the tribunal has exceeded its powers or where it has acted mala fide or grossly unreasonably or has failed to apply its mind to the matter. See e.g. the cases of National Transport Commission and Another v. Chetty's Motor Transport (Pty^ Ltd 1972(3) S.A 726 (A); Smith's Transport and Others v. Index Motors and Another 1981 BLR 167; Leipeqo v. Moapare and Others 1993 BLR 229.
Where the Court on review sets the decision of such a tribunal aside it can then refer the matter back to the same tribunal for a
proper hearing of the matter. This was done in the Smith's Transport case referred to above. In certain circumstances, however, the Court can exercise its own discretion and itself grant the relief sought
by the appellant. This can be done when it is found that only one possible decision could be made by the tribunal concerned, or where
other factors make it clear that a referral of the matter back to the tribunal
would not be appropriate. See in this connection the cases of Livestock and Meat Industries Control Board v. Garda 1961(1) S.A. 342 (A) and Greylinq and Erasmus (Pty) Ltd v. Johannesburg LRTB 1982 (4) S. A 427 (A) at 449. Tied up with the question whether the Court has a discretion to itself deal with the application
is the further question whether the applicant must exhaust his domestic remedies before approaching the Court. There is no general
rule that a person who considers that he has suffered a wrong is precluded from having recourse to a Court of Law while there is
still hope of extra-judicial redress. See e.g. Bindura Town Management Board v. Desai and Co. 1953(1) S.A 358(A); Welkom Management Board v. Leteno 1958(1) S.A 490, at 502; Lawson v. Cape Town Municipality 1982(4) S. A. 1 (C) at 6. The position is different, however, where the Act makes it clear that the intention of the legislature
is to confine the parties to the remedies provided by the domestic tribunals. See Shames v. S.A Railways and Harbours 1922 A. D. 228; Local Road Transportation Board and Another v. Durban Citv Council and Another 1965 (1) S.A. 586 (A) at 593.
The statute which we have to deal with here provides a person aggrieved by the refusal of a short-term permit may appeal to the Minister
against the Controller's decision. The section (section 10(6) quoted above) provides further that the Minister's decision shall be
final" and shall not be questioned in any court." There is a similar provision dealing with a refusal by the Controller
to grant the more permanent permit. A person then aggrieved by the decision of the
Controller has the right to appeal to the Appeal Tribunal set up under the Act. It is here again provided that a decision of the Appeal
Tribunal "shall be final and conclusive and shall not be questioned in any Court" (section 21(8)). These provisions make
it clear that it is the intention of the legislator to confine the decision making in respect of such permits to the persons and
bodies mentioned in the Act.
The appellant's application was based upon his allegation that the Controller had abdicated his statutory duty and had failed to make
a decision concerning his application for a temporary permit, and he sought an order that the decision be made by the Court. This
the Court could not do. It is in any case clear from the letter dated 4 July 2003 (referred to above) that a decision had been made
by the Controller. He had rejected the appellant's application for a temporary permit. The appellant' s remedy then lay in an appeal
to the Minister.
The order sought by the appellant requiring the Court to grant him a temporary permit could not be granted. The same applies to the
other orders sought in terms of his Notice of Motion. His application was thus correctly dismissed in the Court a quo.
Mr Makuyana, for the appellant, has submitted that even if the appeal is dismissed a special cost order should be made as a mark of
disapproval of the
manner in which this matter was dealt with by the respondents. We have considered his submissions. However, the orders sought by the
appellant could not be granted in the High Court or in this Court and it is our conclusion that the cost order should follow the
result.
The appeal is accordingly dismissed with costs.
DELIVERED IN OPEN COURT AT LOBATSE ON THE 27th DAY OF JULY, 2005
N. W. ZIETSMAN JUDGE OF APPEAL
I agree
A. M. AKIWUMI JUDGE OF APPEAL
i agree
S. A. MOORE JUDGE OF APPEAL
10
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