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Uncedo Services Taxi Association and Others v East London Transitional Local Council (335/99)  ZAECHC 16 (16 July 2000)
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HIGH COURT (BISHO)
CASE NO.: 335/99
In the matter between:
UNCEDO SERVICE TAXI ASSOCIATION
AND OTHERS …………………………………………………. Applicants
THE EAST LONDON TRANSITIONAL LOCAL COUNCIL …………… Respondent
EBRAHIM J: This is an application for leave to appeal which has been brought by the second and other respondents. In view of the fact that the circumstances of this matter and the issues involved quite clearly indicate that it requires the Court to hand down a decision in respect of the leave to appeal as quickly as possible, this is an extempore judgment as I have elected not to reserve judgment for the reasons I have indicated.
For the sake of convenience, and this has been the procedure adopted by both the legal representatives, I shall refer to the parties as in the main application. The application for leave to appeal on behalf of the second respondent has not been proceeded with today as he is now deceased. The second respondent is cited in the application for leave to appeal as the first applicant.
The ground of appeal are set out in the notice for application for leave to appeal in terms of Rule 49 dated 24 March 2000. In regard to the grounds of appeal Mr Taljaard who appears for the other respondents, who are obviously the other applicants in the application for leave to appeal, has indicated at the outset that the ground cited under the heading (b) has been abandoned. This ground is premised on the provisions of the prevention of illegal eviction from/and unlawful occupation of Land Act No.19 of 1998.
I shall proceed to deal with the ground of appeal as set out in the notice of appeal seriatim. In regard to the ground of appeal which is marked (a) and which relates to the issue of the answering affidavit the attack against the Court's judgment in this regard is that the Court found that this document which is annexed to the interlocutory application by second respondent and the other respondents to intervene in the main application was not to be considered to be an answering affidavit. The attack further is that the Court erred in not taking the contents of this document into account for purposes of adjudicating the main application. Whilst it is correct that the Court made a finding that the answering affidavit, which I have referred to, did not amount to an answering affidavit to the founding affidavit of the applicant, the basis of this finding is manifestly not the basis upon which the Court determined the main application. It must be borne in mind that prior to the main application being argued there had been an application for postponement precisely for the purpose of filing an answering affidavit. Even though the Court in delivering an
extempore judgment on 10 March 2000 in regard to the main application may not have expressed certain comments as eloquently as one may have preferred there is manifestly no question that the Court took cognizance of the contents of the so-called answering affidavit which the respondents had annexed to their interlocutory application to intervene in the proceedings. This is not only obvious from the Court's comments in the judgment in the main application, but it is also re-enforced by the fact that the main application was not determined on the basis that the other respondents and the former second respondent had not presented any version of events in answer to those set out in the applicant's founding affidavit. It is clear that had the Court adopted the approach that it would not have regard for anything contained in the so-called answering affidavit then there would not have been any need for the Court to deal with any of the contentions made by the other respondents.
Mr Taljaard has conceded that the basis of this ground of appeal is not that the Court has not had regard to the contents of the so-called answering affidavit. Moreover the flaw in this ground of appeal is highlighted by the fact that the other grounds of appeal are based upon findings which the Court made after having considered the contents of the so-called answering affidavit. This much is quite apparent if regard is had to the grounds of appeal as set out in the application for leave to appeal.
In my view, and as is clear from the extempore judgment in the main application, ample reference has been made to the so-called answering affidavit and the contentions of the other respondents and due consideration was given to those contentions. In the view that I take the ground of appeal in this regard is without merit and fails.
I turn to the ground under (c), before I do so, let me just mention, as I did earlier that the ground of appeal under the heading (b) has clearly been abandoned. I return to (c). This relates to the fact that the Court had made a finding that certain facts were either common cause or were not disputed by the respondents. This may perhaps be an example of ineloquent phrasing in that whilst the Court indicated that certain facts averred by the applicant in its founding affidavit had not been disputed by the respondents, it does not alter the fact that ultimately the approach that was adopted is that the version of the respondents as set out in its so-called answering affidavit is ultimately what was considered by the Court. The reason for the Court detailing the issues which were common cause or not in dispute, is self-explanatory. Those issues therefore do not require the Court's attention in order to determine which version should prevail, it eliminates some of the issues that need to be determined. In this regard I have not heard Mr Taljaard to submit that there were any clear misdirections on the part of the Court in this regard, safe to say that Mr Taljaard has obviously relied on the Court reaching certain conclusions or what he terms to be incorrect conclusions in regard to certain discussions or undertakings. This will become more apparent later. In my view it is very necessary to determine which issues are in dispute and thereafter to determine which of these are real or genuine or bone fide disputes of fact. Both Mr Taljaard and Mr Smith who appears for the applicant in the main application have referred, quite correctly, to the accepted authorities in this regard and the relevant cases are of course first of all ROOM HIRE CO (PTY) LTD v JEPPE STREET MANSIONS (PTY) LTD SA 1949 (3) 1153 (TPD) at 1163:
"It may be desirable to indicate the principle ways in which a dispute of fact arises. The clearest instance is, of course, (a) when the respondent denies all the material allegations made by the various deponents on the applicant's behalf, and produces or will produce, positive evidence by deponents or witnesses to the contrary. He may have witnesses who are not presently available or who, thought adverse to making an affidavit, would give evidence viva voce if subpoenaed. There are however other cases to consider. The respondent may (b) admit the applicant's affidavit evidence but allege other facts which the applicant disputes. Or (c) he may concede that he has no knowledge of the main facts stated by the applicant, but may deny them, putting applicant to the proof and himself giving or proposing to give evidence to show that the applicant and his deponents are biased and untruthful or otherwise unreliable, and that certain facts upon which the applicant and his deponents rely to prove the main facts are untrue. The absence of any positive evidence possessed by a respondent directly contradicting applicant's main allegations does not render a case such as this free of a real dispute of fact. Or (d) he may state that he can lead no evidence himself or by others to dispute the truth of applicant's statements, which are peculiarly within applicant's knowledge, but he puts applicant to the proof thereof by oral evidence subject to cross - examination.
The last mentioned instance, viz., (d) has been held by WATERMEYER, CJ, in PETERSON v CUTHBERT & CO LTD 1945 (AD) 420 not to be a genuine or real dispute of fact." Then further on page 1164:
Where however permanent relief is sought, it does not follow that the only way of deciding the dispute of fact is by trial action. The Court has a discretion in the matter. The presiding Judge may find it convenient, in cases where the issues are clearly defined the dispute of fact comparatively simple, even though material, and a speedy determination of the dispute desirable to act under Rule 9. The employment of this Rule is at the Court's option exercisable whether or not either party requests him to invoke it and even if the party who has raised the dispute by denials or counter allegations refuses oral evidence, in other circumstances the Court's discretion may well be exercised in the direction of either dismissing the application or of sending the parties to trial with such directions as to costs and the filing of pleadings as it deems fit. What particular course should be taken depends upon the circumstances of each case, and it is undesirable to lay down any rule regarding the exercise of the Court's discretion."
It is clear from what has been said that simply to raise a dispute is not sufficient to bring it within the ambit of the ratios expressed in the case of ROOM HIRE v JEPPE, if that was so it would be a simple matter for any respondent simply to raise a bear denial and on that circumstances an applicant would be prevented from seeking the relief that it seeks. It is quite clear that a Court has to weigh up the particular issues raised by the respondent and on that basis to determine whether it amounts to what has been described as a real or genuine or bone fide dispute of fact. In my view the attack the judgment on the basis that the disputes raised do not fall in this category depends upon the findings as made by the Court.
In my view this ground of appeal fails and the reasons for this will become even more apparent when I deal with the questions of the various disputes that appeared to have been raised by the other respondents.
In various instances, and as I have indicated in the judgment in the main trial, the disputes of fact, whilst they have been raised do not amount to such as to require the matter either to be referred for oral evidence or for the issue to go to trial, this also will become apparent from my comments later in respect of the other grounds of appeal. In my view this ground of appeal cannot be upheld and it according fails.
next ground is numerated under (e) . The attack here against the
Court's finding is that it erred in finding that the other
respondents had unconditionally undertaken to vacate the land in
question. At the time that Mr Taljaard
main application, he was placed at the grave disadvantage in not
having a full set of papers before him. I should mention
was not due to any neglect or omission on the part of Mr Taljaard,
but for other reasons
and this is not to be considered to be a criticism of him, in fact, as I found in my judgment on the main application, he fared admirably in presenting a case on behalf of the respondents in the face of hardly any information before him. Today when Mr Taljaard argued this ground it became apparent that the manner in which a dispute has been attempted to be created by the other respondents was undermined to a great extent by the fact that one of the attorneys acting for the applicant in the main trial had in fact responded to a communication which he had received from a firm of attorneys who indicated that they were acting on behalf of the taxi operators using a portion of the land in question. The difficult that arose here is that whilst a conversation had taken place between Mr Laing, the particular attorney acting for the applicants in the main
trial, and a Mr Daniels whom he described as the chairperson of the concerned members group, that Mr Daniels had given him an undertaking that the concerned members group would vacate the portion of land. He thereafter received a communication from a firm of attorneys Marshall & Kaplan Inc indicating that they were acting on behalf of the taxi owners or drivers utilising that piece of ground, when he then referred them to the undertaking and sought clarification as to whom they were representing he did not receive any reply. What is interesting about this is that Mr Dlepe the deceased second respondent in answering these allegations of Mr Laing, and the allegations of Mr Laing appear on page 51 of the main record, under paragraph 7. Mr Dlepe's reply appears on page 7 9 of the main record and continues on page 80 and it falls under paragraph 6.4.1, 6.4.2, 6.4.3 and 6.4.4 of his affidavit which as I have indicated earlier was filed as an answering affidavit annexed to an interlocutory application. Let me return to my comment that 1 say it is interesting because Mr Dlepe in fact confirms that the information which Mr Daniels has conveyed to Mr Laing was indeed correct and let me read the relevant paragraph:
"6.4.1 I am informed by Mr Daniels, a member of the group's executive committee that the averments contained in this paragraph are correct. I accordingly admit saying the members of the group were at that stage indeed prepared to vacate the land and to relocate to the taxi rank referred to in this paragraph." Mr Taljaard's argument is that the Court should look at the remaining subparagraphs in paragraph 6.4 to understand that whilst Mr Dlepe did not contest the averment of Mr Laing that Mr Daniels had said that they would vacate, that this was conditional. It is indeed so that Mr Dlepe says the following:
"6.4.2. However, as aforesaid when the members
of the group, including myself, attempted to utilise that rank they were prevented from doing so by members of rival taxi organisations. At that stage the members of the group, including myself, were threatened that if we continued operating our taxis from that taxi rank we would be physically assaulted and our taxis will be destroyed.
Furthermore on the very day we attempted to relocate a full blown taxi war broke out at that rank, during this incident as aforesaid many people lost their lives while others were seriously injured and property was extensively damaged. 10 taxis were torched, had be insisted on using the facilities of that rank the members of the group and I would most certainly have placed our own lives and property in serious jeopardy.
It is for these reasons that the members of the group decided not to use that taxi rank, but instead to continue utilising the rank they have been using for many years until the aforementioned problems have been solved. I am advised by Mr Daniels that the thereupon telephoned the deponent and advised him of the situation.The deponent apparently suggested that the matter be taken up with the applicant. In support of the aforegoing I refer to the supporting affidavit of Mr Daniels as well as a copy of a letter which was addressed to the applicant (Annexures "D5" and "D6") hereto. The applicant did not reply to this letter."
The problems that arise with the averments made by Mr Dlepe is that they are contradictory in nature. He says first of all that he admits they were prepared to vacate the land. Then he continues and he says in fact they did vacate the land, but when they tried to utilise the other taxi rank that problems then arose. He then continues to say that they decided to continue using the land as previously occupied by them. I will come back to these contradictions, but let me say the problem is also that this was never conveyed to Mr Laing at the time that the conversation between him and Mr Daniels took place. It is quite clear from what Mr Dlepe says that after the conversation with Mr Laing they vacated and certain problems then arose. To suggest now that this creates a dispute of fact is in fact to introduce aspects that were never placed before Mr Laing to enable him to comment insofar as this was concerned. I find it strange that Mr Daniels in speaking to Mr Laing did not immediately say that look we are not able to vacate the land because we have attempted to use the other rank and certain problems have arisen. In my view the other respondents indeed vacated the land and at that stage decided to use the alternative premises which the applicant had made available, it is thereupon that certain problems arose and understandably they then decided to re-occupy the piece of land which forms the subject matter of dispute. In my view it does not assist the respondents to now claim that because of certain violence which occurred after they had vacated the land in question that this should be interpreted as meaning that they had never vacated the piece of land. Moreover it flies in the face of the clear information that Mr Daniels had conveyed to Mr Laing. An attempt by Mr Laing to clarify who Mr Elliot was representing did not elicit any reply, it seems to me peculiar that if Mr Elliot was representing the group who termed themselves as the concerned members' group that he could not answer this straight forwardly and indicate to Mr Laing what the position is. I do not find that this averment on the part of Mr Dlepe results in there being a real dispute of fact. On the contrary it confirms the averment made by the applicant that there was an undertaking to vacate the land in question. In regard to this ground of appeal my conclusion is that it is without merit and it fails.
Insofar as the ground of appeal under the numbering (f) and (i) and (ii) are concerned the contention is that whilst the other respondents had indicated they were prepared to vacate it was conditional upon certain events taking place. In this regard they say that there should have been further discussions, the first respondent and all other taxi organisations and in agreement had to be reached in regard to the proper administration and management of the proposed new taxi rank; and secondly that adequate arrangements had to be first put in place in respect of the safety and security of the applicants and their property as well of the passengers at the said new taxi rank. The word 'applicants' here refer to the second and other respondents.
In this regard it must be borne in mind, and it has been conceded most readily and quite correctly by Mr Taljaard, that the other respondents are members of first respondent and in fact remain members of first respondent. However, because of certain disagreements inside the first respondent, they wound themselves in a position where they had to negotiate a position that protected their interest. The difficulty that this creates is that on the admission of the other respondents themselves they did not place themselves outside the sphere of control of the first respondent, namely the Uncedo Service Taxi Association.
That is not their case. They admit they are members and therefore it is implicit that they are bound by any decisions that the first respondent has taken and by any agreements that the first respondent has entered into. Since the status of the concerned members group vis-a-vis the first respondent, namely the Uncedo Service Taxi Association, is clearly not in dispute, by virtue of the fact that it is admitted that they remain members of the group, I have difficulty in accepting that they can rely upon the fact that they are entitled to be recognised as a separate group by the applicant, and that their negotiations were on that basis. Mr Smith is quite correct in his contention that unless the other respondents are able in law to establish that they have a lawful right to the use of the land in question, it is not a defence for them to say that because of an internal dispute they are not bound by the decisions of the first respondent. Indeed Mr Taljaard has not sought to persuade me otherwise, he concedes that they are bound by those decisions. This being so then the fact that the first respondent had vacated the land in question, added to the fact that Mr Daniels on behalf of the concerned members group had given an undertaking that they would vacate on a particular day, the fact that they now claim that they were entitled to separate treatment does not in my view either create a real dispute of fact.
On the basis of the facts as appear from the other respondents so-called answering affidavit the only conclusion to reach is that they are bound by the decisions and the agreements reached by the first respondent. Whatever grievances the other respondents may have had inside the first respondent, that is the Uncedo Service Taxi Association, these are issues that they should have resolved within that forum and it is not an issue which can now tie the applicant down to having to recognised any rights that they claim they may have had.
I am unpersuaded that any of these disputes which the other respondents have raised are either real or material or genuine. Moreover, and perhaps more importantly, these disputes, if they may be termed such, are peripheral to the main question, and that is whether the other respondents have a legal right to use the land in question. This right in my view, if such existed, terminated immediately the first respondent concluded an agreement to vacate the land and in fact vacated. If any residual rights flowed over to the concerned members group, those rights also terminated upon Mr Daniels providing the undertaking to vacate and indeed is re-enforced by the fact that Mr Dlepe admits that they vacated the land and proceeded to try and use the alternative taxi rank that had been provided. It is clear on the version of the respondents as fortified by the issues that are common cause that they have not been able to mount a defence to the orders which the applicant has sought. I have nevertheless considered the question whether there is not a reasonable possibility that another Court may reach a decision different to that of this Court. In my view it has to be a reasonable possibility, it cannot be one which is so far removed that another Court may say that simply because there is some prospect of there being some truth in what the other respondents have averred that on that basis there is some remote possibility that a Court may arrive at another decision. This has not been the argument addressed to me by Mr Taljaard nor Mr Smith. I cannot see that there is a reasonable possibility that another Court may arrive at a decision different to this Court in respect of any of the grounds of appeal. There is in my view no reasonable prospect that another Court could find that the main application should not have been determined in favour of the applicant as was found by this Court.
In the circumstances the application for leave to appeal is refused.
I wish to place on record the appreciation of this Court to both Mr Taljaard and Mr Smith for providing the Court with concise heads of argument and for the able manner in which they presented arguments. I appreciate the difficult task Mr Taljaard has had, but I particularly want to convey my appreciation for the manner in which he has presented his argument.
This leaves the question of costs. It has not been suggested that costs should not follow the result and I do not find any reason why it should not also follow the result. In the circumstances costs are awarded in favour of the applicant in the main trial, that is the respondent in the application for leave to appeal.
JUDGE: BISHO HIGH COURT 17 JULY 2000