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[2013] ZAECGHC 29
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Indwe Taxi Association and Others v Indwe Uncedo Taxi Association and Others (3290/12) [2013] ZAECGHC 29 (4 April 2013)
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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION – GRAHAMSTOWN
Case no: 3290/12
Date Heard: 22/03/2013
Date Delivered: 04/04/2013
In the matter between:
INDWE TAXI ASSOCIATION ....................................................1ST APPLICANT
PHILEMON JONI .....................................................................2ND APPLICANT
DON MAWETHU MAYONGO ......................................................3RD APPLICANT
SIDNEY HELEBA ......................................................................4TH APPLICANT
And
INDWE UNCEDO TAXI ASSOCIATION ....................................1st RESPONDENT
VELIEL SKEYI .......................................................................2nd RESPONDENT
PAKAMILE DAMOYI ..............................................................3rd RESPONDENT
BONGANI WUNQU ................................................................4TH RESPONDENT
ALL MEMBERS AND SUPPORTERS OF
INDWE UNCEDO TAXI ASSOCIATION ...................................5TH RESPONDENT
(Their names are set out on Annexure “A” hereto)
JUDGMENT
SMITH J:
The applicants seek an order, inter alia, interdicting the respondents from:
(i) intimidating, threatening or preventing them from transporting passengers to and from Indwe; and
(ii) restraining them from transporting passengers to and from Indwe, until such time as they produce the requisite operating permits.
The first applicant and first respondent are both taxi associations, and the other parties their members.
It is trite law that to succeed the applicants must establish, on a balance of probabilities: a clear right; an injury committed or reasonably apprehended; and the absence of an effective alternative remedy.
Despite the fact that there are massive disputes of fact on material issues, the applicants have not applied to have the matter referred for viva voce evidence. I am therefore constrained to resolve these disputes on the basis of the well known principle enunciated in Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A), namely, on the facts put up by the respondents, together with those facts put up by the applicants, which are not in dispute. That is of course unless I find that the respondents’ version is so far-fetched or uncreditworthy that it should be rejected out of hand. (National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA))
In their founding papers the applicants rely heavily on the alleged assault by members of the first respondent on the fourth applicant, Michael Mntuyedwa. Mntuyedwa claimed that he was assaulted on 2 October 2012 by members of the first respondent, with “open hands” at the Indwe and Queenstown taxi ranks, respectively. They had also allegedly prevented him from transporting passengers from the Queenstown taxi rank to Indwe. Other than this incident the applicants rely on broad-sweeping and general claims to the effect that:“tensions increase”; “there were clashes on the ground”; and they are concerned that “there could be sudden outbreak of violence that could lead to unnecessary loss of life”. Nowhere in their founding papers do they provide any factual bases for these conclusions and portents of future violence. The founding papers are equally vague regarding assertions that the respondents are unlawfully operating taxis without the necessary permits. Even in this regard the applicants rely on vague and nebulous allegations.
The respondents therefore understandably complained that they were prejudiced by the lack of detail in the applicants’ founding papers. They have nevertheless replied comprehensively to those allegations in respect of which some detail were provided.
Regarding the alleged assault on Mntuyedwa on 2 October 2012, they have proffered a thorough and coherent explanation which gainsays the applicants’ allegations. On their version, the incident was blown out of proportion and amounted to little more than a misunderstanding between the fourth respondent and Mntuyedwa. They claim that this incident was in any event quelled through the intervention of one Mthetho. The fourth respondent and Mnutuyedwa thereafter shook hands and remain friends. On the respondents’ version there is therefore no tension between the parties and consequently no threat of violence. They also deny that they have interfered with the applicants in the operation of the taxis.
Regarding the allegation that they are operating taxis without valid permits, they averred that only three of them, namely the third, eighth and tenth respondents, are involved in the taxi industry and are operating their taxis in terms of valid permits. The other members of the first respondent namely, fifth and thirteenth to eighteenth respondents, though they have joined the first respondent in their quest to obtain operating permits, do not yet have such permits and are therefore not presently involved in the taxi industry.
The fourth, sixth, seventh, ninth, eleventh and twelfth respondents do not operate taxis, but provide scholar transport in terms of an agreement with the government.
The applicants have, in an obvious attempt to address these fundamental shortcomings in their founding papers, impermissibly attempted to introduce new matter in their replying affidavit.
Mr Cole, who appeared for the respondents, has correctly submitted that the applicants must stand or fall by what is stated in their founding papers, and they should not be allowed to supplement a defective case in their replies. (Director of Hospital Services v Mistry 1979 (1) SA 626 (AD) at 635H-636A). In the event, the new matter contained in the replying affidavits relate mainly to alleged intimidation by members of the Queenstown Uncedo Taxi Association, which is not a party to these proceedings.
Mr Sandi, who appeared for the applicants, was unsurprisingly unable to advance any reason as to why the respondents’ version should be rejected out of hand as being uncreditworthy or far-fetched. It is on the contrary, in my view, the version proffered by the applicants which is not only afflicted by paucity of factual detail, but also fraught with improbabilities. By way of example, in the founding affidavit it is alleged that Mntuyedwa was assaulted with open hands, while Mabuto Qotha has stated in his confirmatory affidavit that the former had been assaulted with a stick.
In the event I am not convinced that there are any aspects of the respondents’ version which can be regarded as improbable or far-fetched, and I am therefore constrained to decide the matter on their version. On this approach the applicants have failed to establish any of the legal requisites for an interdict, and the application must therefore fail.
In the result the application is dismissed with costs.
_______________________
J.E SMITH
JUDGE OF THE HIGH COURT
Appearance
Counsel for the Plaintiffs : Advocate Sandi
Attorney for the Plaintiffs : Bobotyana Attorneys.
C/o
Mvulana Attorneys
Room 13 EPBS Building
Church Square
Grahamstown
Tel: 082 089 3064
Ref: Mvulana/ pam/l1
Counsel for the Respondents : Advocate Cole +
Attorney for the Respondents : Mili Attorneys
Eskom Building
110 High Street
Grahamstown
Ref: D Mili/zandi
Date Heard : 22 March 2013
Date Delivered : 04 April 2013