Airoadexpress (Pty) Ltd v Chairman, Local Road Transportation Board, Durban, and Others

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Kotzé JA, Miller JA, Joubert JA, Van Heerden JA and Grosskopf JA
• Judgment Date: 27 February 1986
• Citation: 1986 (2) SA 663 (A)
• Hearing Date: 05 November 1985

Kotzé, JA.:

This appeal arises out of proceedings in the Natal A Provincial Division. On 23 December 1983 BROOME J granted an urgent rule nisi to the present appellant (as applicant). On 17 August 1984, after the rule had been extended several times, KUMLEBEN J discharged the rule with costs. Four days later the lastmentioned learned Judge granted leave to appeal to this B Court - hence the present proceedings. Reasoned judgments were delivered in both the rule nisi and the return day proceedings and are respectively reported in 1984 (3) SA 65 and 1984 (4) SA 593 (sub nomine Airoadexpress (Pty) Ltd v Chairman, LRTB, Durban, and Others). Since I do not propose to indulge in unnecessary repetition, this judgment should be read C with the reported judgments.

To the terms of the rule nisi set out by KUMLEBEN J at 595D - 596C should be added para 4 (b):

"the applicant be and is hereby ordered... to note and prosecute an appeal to the National Transport Commission in accordance with the provisions of the Road Transportation Act 74 of 1977, as amended, and the regulations published thereunder, against the first respondent's decision given on 15 December 1983 not to grant and issue to the applicant the said D public permits."

The appeal to the National Transport Commission (NTC) had been duly noted on 20 December 1983.

The appellant, first respondent and second respondent, were represented before us. The third respondent filed an affidavit to the effect that it adopted the argument presented on behalf E of the second respondent.

KUMLEBEN J correctly, in my view, points out that there are differences between the nature of the authorisation which the appellant enjoyed for five years up to 31 December 1983 and the nature of the authorisation applied for on 26 September 1983. Yet I agree with BROOME J that

"(o)ne must look at the substance and not the form of this particular application and that it would be unfair to adopt a F strict legalistic approach... by categorising these matters as either applications for a renewal or applications for a new certificate... When one looks at the facts of this case one finds that what is intended should happen and the permission which is sought to come into operation after 1 January 1984 is the same applicant, the same operator, conveying the same goods between the same points, enjoying the patronage of the same customers and in fact even employing the same drivers and same G staff. In other words, without elaborating any further, it is fundamentally the same service with one difference and one difference only, that is, the vehicles involved. Up to 31 December there were 17 one-ton bakkies. Thereafter there are two bigger trucks. So really, when one takes what I believe to be a sensible view of the facts of this case, a realistic view, one finds that what the applicant is seeking to do is substantially the same as it has been doing lawfully with one difference and one difference only, that is, using two larger H vehicles (to comply with what it apparently believes is the policy as evidenced by the amendments to the Act) instead of a number of smaller vehicles."

(At 76I - 77B.) (In regard to the marked apparent difference between the carrying capacity of the 17 one-ton vehicles on the one hand and the two 22-ton vehicles on the other hand, one should bear in mind the explanation referred to by KUMLEBEN J I at 605B - E.)

BROOME J found that:

(a)

appellant established a well-grounded apprehension of irreparable harm if relief be withheld from it (at 69E - 70E);

(b)

the balance of convenience favoured the grant of the rule applied for (ibid);

(c)

no other satisfactory remedy was available to J appellant (at 71F - I);

(d)

A appellant established prima facie that the local board adopted a wrong approach to the application (at 73A - C), made out a powerful case on the merits likely to succeed on appeal to the NTC (at 73H - I) and the application was wrongly refused on the merits (at 74D - F).

B KUMLEBEN J agreed that requisites (a), (b) and (c) for an interim interdict were established (at 605 in fine- 606A). In regard to (d) he had reservations: see at 603H - 605I. My view in this connection can be stated briefly. The virtually uncontradicted evidence (of Nicole and Mentrup), referred to by BROOME J at 67E - G, established that with effect from January 1978 the appellant brought into operation a specialised form of C overnight door-to-door motor carrier transportation between the Reef and Durban which, in the public interest, is both necessary and desirable. The rail services offered by second respondent and the services of the other respondents are neither satisfacatory nor sufficient. Moreover, it seems to me that, regard being had inter alia to

(i)

D the reasons furnished by the local board in the Ratner and Collett Agencies application, Von Bratt's failure to dissociate himself therefrom in clear terms and Muller's unconvincing declaration that he neither thought of nor mentioned the said reasons to Von Bratt in the course of their deliberations;

(ii)

E Botha's statements to Van der Berg;

(iii)

the undue importance attached to the amendment to s 1 (2) (l) of the Road Transportation Act 74 of 1977 (the Act) by Act 8 of 1983; and

(iv)

the unconvincing reasons given by the local board for F its refusal of appellant's application (one such reason, unconfirmed by evidence, eg being that the board "felt" that a 22-ton trailer restricted to 10 hours travelling time could not travel between the Reef and Durban without exceeding the speed limit);

substantial grounds exist to support the contention that at least portion of the causa relied upon in the founding G affidavit has been substantiated. The said causa takes the form of a submission that the local board in refusing to grant the application:

"(a)

applied the wrong principles in that it approached the hearing of the application and the decision which it had to make upon the basis that the Legislature did not intend that road transportation of the kind H applied for should be granted by a local board;

(b)

failed to apply or keep in mind the relevant provisions of the Act when arriving at its decision and accordingly failed to exercise its statutory duty;

(c)

approached the exercise of its statutory duty upon the basis that the application should have been heard and considered by the National Transport Commission and not by the local board in that local board should not be called upon to decide applications of this kind and accordingly I should not grant them

(d)

was prompted by some ulterior motive or some policy of which it did not inform the applicant at any time during the course of the proceedings;

(e)

failed to apply its mind to the issues between the applicant and the respondents;

(f)

acted arbitrarily and capriciously;

(g)

relied on irrelevant considerations and wrong principles;

(h)

J failed to appreciate the nature and limits of the power to be exercised by it;

Kotzé JA

(i)

A relied on irrelevant considerations and wrong principles."

Each of the above grounds (a)-(i) is an appropriate ground upon which the Supreme Court may, pursuant to its inherent power, review and correct the proceedings of a body such as a local board established in terms of s 4 of the Act. But, as I shall endeavour to point out, they are at the same time grounds which may be advanced on appeal to the NTC.

B The factual background can be summed up briefly:

(a)

For five years from January 1978 to 31 December 1983 the appellant provided a transportation service which served the public interest.

(b)

C No alternative satisfactory service exists.

(c)

The service referred to in (a) lapsed by virtue of legislative enactment.

(d)

The local board refused an application by the appellant to replace the service referred to in (a) by a fundamentally similar service.

(e)

In essence the refusal referred to in (d) arose out of a failure to exercise an unfettered discretion in that D the local board refused the application because of a wrong impression that the Act as amended prohibited the grant of the permits applied for.

It is against the said background that the crucial legal submission relied upon by the appellant has to be decided. The said submission, strongly contested by the respondents, is that E the Supreme Court is endowed with power to grant public road transportation permits by mandatory order affording interim protection pending an appeal to the NTC in circumstances where a local board's decision is apparently vitiated by irregularity. None of the authorities cited to us deals directly with the problem posed. It has to be determined F largely on principle.

In terms of s 8 of the Act any person who has applied to a local road transportation board for the grant of a public road carrier permit and is affected by any decision of such board, may appeal against the decision to the NTC which may reject the appeal and confirm the decision or uphold the appeal wholly or partially, set aside the decision and substitute therefor any G other decision which the board could have given or remit the matter for fresh consideration. It follows that the NTC possesses powers similar to those which the Supreme Court possesses in terms of its review jurisdiction. These powers exist side by side and do not exclude each other. What is significant is that the NTC is not endowed with any power to H afford interim relief pending an appeal to it.

On the material before us a strong prima facie case has been made out that the permits applied for were wrongly refused by reason of the local board's wrong belief that the Act as amended precluded the grant of the certificates. In the event of such proof the Court would, upon application to it, be I ...