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Last Updated: 17 October 2005
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 358/04
In the matter between:
MZAMBA TAXI OWNERS’
ASSOCIATION First Appellant
LUNGELO
TOBO Second Appellant
and
BIZANA TAXI
ASSOCIATION First Respondent
BAMBANANI TAXI
ASSOCIATION Second Respondent
HIBISCUS COAST MUNICIPALITY
Third Respondent
THE MINISTER OF SAFETY & SECURITY
Fourth Respondent
THE KWAZULU-NATAL PROVINCIAL Fifth
Respondent
TAXI REGISTRAR
THE EASTERN CAPE PROVINCIAL
Sixth Respondent
TAXI
REGISTRAR
__________________________________________________________________________
Coram: Harms,
Navsa, Mthiyane, Ponnan JJA et Maya AJA
Date of
hearing: 25 August 2005
Date of delivery: 9 September
2005
Summary: Administrative law ─ endorsement by
provincial taxi registrar of a voluntary agreement between two taxi associations
in terms
of which a taxi rank is shared not subject to review ─ rival taxi
association’s rights not infringed ─ right to
operate route by
virtue of public permit issued by transportation board ─ such right not
conferred by endorsement.
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA
JA:
[1] This appeal involves a dispute concerning the use of a taxi rank
in Port Edward within the province of KwaZulu-Natal. It is directed
against a
judgment of McLaren J in the Pietermaritzburg High Court, whereby he dismissed
an application by the two appellants, who
had sought to set aside the
endorsement (purportedly made in terms of applicable statutory provisions) by
the fifth and sixth respondents
of an agreement (‘the agreement’)
between the Bizana Taxi Association and the Bambanani Taxi Association (the
first and
second respondents) to share part of the taxi rank in question. The
present appeal is before us with the leave of the court below.
[2] The
first appellant is a voluntary association (not for gain) of minibus taxi
operators, as are the first and second respondents.
The second appellant is an
authorised taxi operator and a member of the first appellant. The third
respondent is the Hibiscus Coast
Municipality within whose area of jurisdiction
Port Edward is situated. The fourth respondent is the Minister of Safety and
Security.
The fifth and sixth respondents are the KwaZulu-Natal Provincial Taxi
Registrar and the Eastern Cape Provincial Taxi Registrar,
respectively.
[3] The appellants claim that the endorsement of the agreement,
to which the fifth and sixth respondents appended their signatures
signifying an
apparent assent, was irregular and that implementation thereof would adversely
affect its members, mainly financially.
The present dispute is one of a number
of disputes between the first appellant, on the one side, and the first and
second respondents,
on the other. The Umtata High Court, the Pietermaritzburg
High Court, as well as the police have been kept busy dealing with these
disputes. For present purposes, however, it is not necessary to deal with their
other disputes.
[4] For the sake of convenience I shall refer to the
first appellant as Mzamba, the first respondent as BTA, and the second
respondent
as Bambanani.
[5] Mzamba has an office at the Port Edward
shopping centre but is based in the Eastern Cape. BTA has its principal place of
business
in Bizana in the Eastern Cape. Bambanani, on the other hand, has its
principal place of business at Margate, KwaZulu-Natal.
[6] The Port
Edward taxi rank is a point on a minibus taxi route between KwaZulu-Natal and
the Eastern Cape. The route in question
is the Bizana - Port Edward - Port
Shepstone route (the route). Before the agreement was signed, Mzamba and
Bambanani shared the
Port Edward taxi rank, each utilising a geographical half
independently. Mzamba’s members operate the route and Bambanani’s
members do not conduct services beyond Port Edward into the Eastern
Cape.
[7] On 9 December 2002 Mzamba was informed that the third
respondent intended facilitating the signing on 11 December 2002 of an
inter-provincial
operations agreement by BTA and Bambanani. Mzamba was informed
that the conclusion of the agreement would entitle BTA to the use
of
Bambanani’s half of the Port Edward taxi rank. Such agreements are
commonly referred to in the taxi industry as gapping agreements. Simply
put, it is an agreement in terms of which one taxi association agrees to the use
of its taxi rank facility by members
of another taxi
association.
[8] Mzamba was neither considered nor invited to be part of
any discussion preceding the conclusion of the agreement. Mzamba was also
not
invited to the meeting at which it was envisaged the signing of the agreement
would take place.
[9] On 11 December 2002, Mzamba, through its attorneys,
wrote to the fifth respondent, objecting to the proposed signing of the
agreement,
stating that the agreement would result in encroachment on its
entitlement to the use of the Port Edward taxi rank and that it would
in
consequence suffer financial prejudice. Mzamba called for the postponement of
the meeting and of the signing of the agreement.
[10] On the same day
Mzamba’s chairperson called at the offices of the fifth respondent and was
assured that no agreement would
be signed. However, on 7 January 2003, Mzamba
was informed by BTA and Bambanani’s attorney that an agreement had in fact
been
signed which entitled BTA members to operate from the Port Edward taxi rank
in their travels to and from the Eastern Cape and on
to Port
Shepstone.
[11] There were communications between the parties during the
ensuing month but to no avail. BTA members attempted to operate from
the Port
Edward taxi rank. Tensions arose and violence erupted.
[12] On 11 March
2003 Mzamba and the second appellant sought and obtained an order from the
Pietermaritzburg High Court (Kondile J),
inter alia, interdicting BTA,
Bambanani and the fifth and sixth respondents (the taxi registrars) from
implementing the agreement
pending the finalisation of an application to have
the decision by the registrars to endorse the agreement set aside. In the
alternative,
Mzamba and the second appellant sought an order declaring the
agreement to be invalid.
[13] In the court below the second, third,
fourth, fifth and sixth respondents did not oppose the application and indicated
that they
would abide the decision of the court. They adopted the same attitude
before us.
[14] After considering the facts and the relevant statutory
provisions, McLaren J held that the participation of the two registrars
in the
process culminating in the agreement amounted to administrative action within
the meaning ascribed to that expression in terms
of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’). He held, however,
that the appellants failed to prove
on a balance of probabilities that the
decision or conduct by the two registrars adversely affected their rights, or
that it had
a direct external legal effect, all requirements for the review of
administrative action under PAJA. In his view the right of members
of BTA to
operate the route was by virtue, in each instance, of a public permit and not
the agreement. He concluded that the agreement
did not affect the
appellants’ rights in any way because the agreement ‘simply is one
between the first and second respondents
in terms whereof the second respondent
shared its limited geographical half share of the Port Edward taxi rank with the
first respondent’s
members, allowing the latter to park there and collect
passengers.’ It is these latter conclusions that the appellants
challenge.
[15] It is necessary at this stage to examine the statutory
framework within which minibus taxi operators are obliged to
operate.
[16] The Road Transportation Act 74 of 1977 (the RTA) provides
for the control of certain forms of road transportation and for matters
connected therewith. The authority to operate a minibus taxi within or across
particular geographical areas is granted by local boards
established in terms of
the RTA (see s 7). This is done by issuing a public permit. Section 21 deals
with the conditions governing
the issue of a permit. Section 21(3)(e)
provides that the permit should specify:
‘the points between and the
routes upon which or the area or areas within which the motor vehicle to which
it refers may be
used in road transportation, and if any restriction is imposed
in connection with any transportation upon any portion of such a route
or routes
or in any area or areas or in any portion of such area or areas, the points
between or the area within which such restriction
shall be applied and
conditions thereof’.
[17] The National Land Transport Transition
Act 22 of 2000 (the NLTTA) was enacted to provide for the transformation and
restructuring
of the national land transport system of South Africa and matters
incidental thereto. Section 2, inter alia, provides the measures
to give effect
to national policy concerning the first phase of the transformation and
restructuring process and to achieve a smooth
transition to a new system,
applicable nationally.
[18] In the province of KwaZulu-Natal, the
KwaZulu-Natal Interim Minibus Taxi Act 4 of 1998 (the KNIMTA) applies. Its
preamble states
that it was enacted as interim legislation to regulate the
minibus taxi industry and to formalise, restructure and legalise minibus
taxi
registration and services during the period leading up to the enactment of
national and provincial land transport legislation,
and to provide for matters
incidental thereto. It has not been suggested that the provisions of the KNIMTA
are in any way in conflict
with any of the provisions of the NLTTA or that they
do not apply.
[19] The KNIMTA provides for the appointment of a taxi
registrar (s 5). In s 7 the registrar is endowed with certain powers, including
the power to instruct the relevant parties, where there is a dispute concerning
routes, to appear before him or her in order for
a hearing to take place to
enable a decision to settle the dispute. Section 25 provides for the
establishment of a KwaZulu-Natal
Interim Minibus Taxi Tribunal, which has the
authority, inter alia, to hear and decide appeals against any decision of the
Taxi Registrar
relating to disputes about the operations of minibus taxi
services.
[20] It is clear from the provisions of the KNIMTA that its
object is to ensure that minibus taxi operators operating within its
jurisdiction
do so legitimately and that all the statutory prescripts for such
operations are complied with. In s 3 of the Act the principles
governing
provincial interim minibus taxi policy are spelt out. These include the
prevention of encroachment on services provided
by duly authorised operators and
the promotion of taxi services within the law.
[21] In the definition
section of the KNIMTA there is reference to an ‘area defined
permit’, in terms of which a local
road transportation board established
in terms of the RTA may authorise minibus taxis to conduct operations within a
defined geographical
area. It is evident that, in executing his or her
regulatory functions, a registrar must ensure that the appropriate public permit
has been issued to minibus taxi operators conducting taxi services within the
province.
[22] The two registrars in question, in appending their
signatures and thus their apparent assent to the agreement, purported to act
in
terms of the regulations promulgated in terms of the KNIMTA and in particular in
terms of regulation 18.
[23] It is necessary to consider the provisions
of regulation 18:
’18. Agreements between minibus taxi
associations.─ (1) The Provincial Taxi Registrar shall prescribe a
document to be completed and signed by minibus taxi associations operating
minibus taxi services ─
(a) of common origin and/or
destination;
(b) within a commonly defined geographical area;
and/or
(c) sharing ranks or other public facilities which the general
public is also entitled to use,
which document shall be referred to as an
agreement document.
(2) The agreement document shall include details
regarding ─
(a) routes or geographical areas operated by the
affected minibus taxi associations;
(b) shared routes, ranks or
other public facilities;
(c) existing operational arrangements;
and
(d) any conflict or contestation of routes, ranks or other public
facilities.
(3) Minibus taxi associations shall when requested by the
Provincial Taxi Registrar, complete an agreement document which shall be
signed
by the chairperson of the minibus taxi association.
(4) A minibus taxi
association which refuses to complete an agreement as contemplated in
subregulation (3) shall be ─
(a) subject to a fine of R10,000;
and
(b) suspended from registration until it complies with the
requirement.
(5) Minibus taxi associations shall at all times abide by
the terms and conditions in the agreement document and shall ensure that
their
members operate in accordance with these terms and conditions.
(6) A minibus
taxi association which contravenes the provisions of sub-regulation (5) shall be
─
(a) liable to a fine of R10,000; and
(b) suspended from
registration until it complies with the provision.’
[24] McLaren J
described regulation 18 as ‘gibberish’. It is difficult to make
sense of its provisions and substantial
parts may well be of questionable
validity. As can be seen it provides that the provincial registrar is obliged to
prescribe a form
which it is envisaged will be completed by taxi associations
and will comprise an agreement dealing with specific matters relating
to taxi
associations. Regulation 18(3) appears to oblige taxi associations to comply
with a request by the registrar to complete
such an agreement. Regulation 18(4)
provides a criminal sanction for failure to comply with such a request and
renders the offending
association subject to suspension. Regulation 18 does not,
however, on any reading, confer authority on the registrar to sanction
the
operation of minibus taxi services beyond the provisions of the RTA which is the
primary regulatory statute. So, for example,
it is not within the power of the
registrar to issue a public permit. An agreement between associations cannot by
itself transfer
or bestow the right to operate along a specific route. That
right, as referred to earlier, is by way of a public permit in terms
of the RTA.
More importantly, the regulation does not empower the provincial registrars to
nullify the rights that flow from a properly
issued public permit.
[25] It is common cause that in the present case members of the BTA have
the relevant permits authorising them to operate the route.
Properly construed,
the appellants’ complaint is that their members will be prejudiced
financially by the increased competition
due to the BTA operating the route.
Counsel representing the appellants was constrained to concede that their main
objection to BTA
operating from the Port Edward taxi rank was that their members
would be subject to competition. Counsel was unable to point to any
other form
of prejudice to which the appellants would be subjected as a result of BTA and
Bambanani sharing the latter’s half
of the Port Edward taxi rank in terms
of the voluntary arrangement between them.
[26] In a throwaway line, in
a replying affidavit, the appellants contend that they intend challenging the
validity of the public
permits. The present appeal does not involve a
consideration of that issue.
[27] It appears that the appellants
misconceived their remedy. If indeed the public permits were issued irregularly,
the decisions
to issue them would be ones that would adversely have affected the
appellants and would have had a direct external effect. They would
qualify as
reviewable decisions within the parameters of PAJA.
[28] In the present
case, BTA and Bambanani voluntarily concluded an agreement in terms of which the
latter provided the former with
the use of its half of a taxi rank. Even if one
assumes that a ‘request’, as envisaged in regulation 18(3), by the
fifth
respondent to Bambanani and BTA to complete an agreement document, may
amount to administrative action, the problem is that it was
never the
appellants’ case that there had been such a request nor was there any
evidence to that effect. There was, therefore,
no administrative action by the
fifth respondent in terms of the regulation because there was no decision that
amounted to such action
as defined in s 1 of PAJA. The endorsement by the two
registrars provided no further legal impetus to the agreement voluntarily
concluded
by Bambanani and BTA. It did not confer the authority to operate the
route. That was already in place by virtue of the public permits.
There was thus
no administrative action by either registrar which was open to challenge by the
appellants, either in terms of PAJA,
or otherwise.
[29] To prevent BTA
members from using the Port Edward taxi rank would be to frustrate the rights
acquired by them in terms of the
relevant permits from the relevant road
transportation boards, which are the primary regulators of minibus taxi
operators. The regulatory
statutes were never intended to frustrate lawful
competition. On the contrary, they were designed to ensure safety, efficiency
and
lawful competition in the public interest.
[30] In my view, McLaren J
was correct in the latter part of his reasoning referred to in para [14] above
and correctly dismissed
the application in the court below.
[31] For the
reasons stated, the appeal is dismissed with costs including the costs of two
counsel.
________________
M S NAVSA
JUDGE OF APPEAL
CONCUR:
HARMS JA
MTHIYANE JA
PONNAN JA
MAYA AJA
SAFLII:
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.RTF of original document