Klipriver Taxi Association and Others v MEC for Transport, KZN and Another

• Jurisdiction: South Africa

Klipriver Taxi Association and Others v MEC for Transport, KZN and Another
2020 (3) SA 447 (KZP)

2020 (3) SA p447

Citation	2020 (3) SA 447 (KZP)
Case No	12682/2018P
Court	KwaZulu-Natal Division, Pietermaritzburg
Judge	Chetty J
Heard	June 14, 2019
Judgment	June 14, 2019
Counsel	KJ Kemp SC (with I Veerasamy) for the applicants.; TSI Mthembu SC (with M Mazibuko) for the first respondent.

Flynote : Sleutelwoorde

Roads — Public transport — Violence, unrest or instability — MEC's power to close transport routes — Whether lawful to use power to eradicate dual membership of taxi associations or to compel associations to enter into agreement — National Land Transport Act 5 of 2009, ss 91(1) and 91(2).

Headnote : Kopnota

In this matter the first respondent MEC, using the powers in s 91(2) of the National Land Transport Act 5 of 2009, suspended long-distance taxi routes of the Klipriver Taxi Association (Klipriver) and the Sizwe Transport Association (Sizwe) (see [2] and [16]). (Section 91(1) provides inter alia that where there is 'violence, unrest or instability in . . . the public transport industry', the MEC for Transport may under s 91(2) close routes.)

Here, Klipriver came to apply for the review and setting aside of the suspension (see [3]).

Held, that it should be (see [49]):

•

The s 91 powers were intended to be used to address 'violence, unrest or instability' but here they were being used to eliminate dual membership of Klipriver and Sizwe (see [18]). The action was thus not authorised by the empowering provisions (see [24]).

•

The MEC's hypothesis that dual membership caused violence between Klipriver and Sizwe and which informed the suspension was speculative and an irrelevant consideration (see [25]).

•

The suspension notice failed to specify the routes suspended and so was impermissibly vague (see [26]).

•

The use of suspension to compel the associations to enter an agreement was ultra vires and an infringement of the principle of legality (see [27], [30] and [37]).

Cases cited

American Natural Soda Ash Corporation and Another v Competition Commission and Others 2005 (6) SA 158 (SCA) ([2005] 3 All SA 1; [2005] ZASCA 42): referred to

Durbsinvest (Pty) Ltd v Town and Regional Planning Commission, KwaZulu-Natal, and Others 2001 (4) SA 103 (N): dictum at 107F applied

Head, Western Cape Education Department and Others v Governing Body, Point High School, and Others 2008 (5) SA 18 (SCA) ([2008] 3 All SA 35): distinguished

International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC) (2010 (5) BCLR 457; [2010] ZACC 6): dictum in para [9] applied

Klip River Taxi Association v Sizwe Taxi Association and Others KZP 6035/2017P: considered

Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) (2008 (1) BCLR 1; [2007] ZACC 20): dictum in para [192] applied

Minister of Defence and Military Veterans v Motau and Others 2014 (5) SA 69 (CC) (2014 (8) BCLR 930; [2014] ZACC 18): referred to

2020 (3) SA p448

Minister of Law and Order and Another v Dempsey 1988 (3) SA 19 (A): referred to

Mokoena v Commissioner of Prisons and Another 1985 (1) SA 368 (W): applied

Moyo and Another v Minister of Justice and Constitutional Development and Others 2018 (2) SACR 313 (SCA) (2018 (8) BCLR 972; [2018] 3 All SA 342; [2018] ZASCA 100): referred to

Mustapha and Another v Receiver of Revenue, Lichtenburg and Others 1958 (3) SA 343 (A): dictum at 347D applied

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): referred to

Rennie NO v Gordon and Another NNO 1988 (1) SA 1 (A): referred to

Road Accident Appeal Tribunal and Others v Gouws and Another 2018 (3) SA 413 (SCA) ([2018] 1 All SA 701; [2017] ZASCA 188): dictum in para [27] applied

Roberts v Chairman, Local Road Transportation Board and Another (1) 1980 (2) SA 472 (C): referred to

S v Ramgobin and Others 1985 (3) SA 587 (N): referred to

South African National Parks v MTO Forestry (Pty) Ltd and Another 2018 (5) SA 177 (SCA): referred to.

Legislation cited

The National Land Transport Act 5 of 2009, ss 91(1) and 91(2): see Juta's Statutes of South Africa 2018/19 vol 4 at 2-319.

Case Information

KJ Kemp SC (with I Veerasamy) for the applicants.

TSI Mthembu SC (with M Mazibuko) for the first respondent.

An application to review a suspension of taxi routes.

Order

1.

The first respondent's decision to suspend all taxi operations of the first applicant in terms of s 91 of the National Land Transportation Act 5 of 2009 as published in the Provincial Gazette of 10 October 2018, Provincial Notice 115 of 2018, is reviewed and set aside.

2.

The first respondent is liable for the first applicant's costs, including that occasioned by the employment of two counsel, such costs to include the hearing on 12 December 2018.

3.

In respect of case No 14210/17P, each party is to pay its own costs.

Judgment

Chetty J:

[1] A cursory search on the Internet regarding the taxi industry in South Africa reveals that there are more than 200 000 minibus taxis on our roads, employing more than 600 000 people, generating more than R90 billion every year, with 69% of households using taxis. Minibus taxis are the most available and most affordable forms of public transportation, conveying 15 million commuters per day. Its existence is fundamental to our society.

[2] Given this background, it is an unfortunate concomitance that with the vast revenues generated by taxi operators comes a struggle for 'turf' or lucrative routes. In the midst of this all is the first respondent, the Member of the Executive Council for Transport, Safety and Community

2020 (3) SA p449

Chetty J

Liaison, KwaZulu-Natal (the MEC), who is tasked with the implementation at a provincial level with the provisions of the National Land Transport Act 5 of 2009 (NLTA) one of the objectives of which is to ensure transport safety and security. This power is derived from s 91(1) of the NLTA, which reads as follows:

'If in any area in the relevant province the MEC considers that because of violence, unrest or instability in any sector of the public transport industry in the area or between operators in the area the safety of —

(a)

passengers using the relevant services; or

(b)

residents; or

(c)

any other persons entering the area,

has deteriorated to an unacceptable level, the MEC may, after consulting relevant planning authorities by notice in the Provincial Gazette, define the area and declare it to be an area in respect of which the notification prescribing the extraordinary measures contemplated in subsection (2) may be made.'

Section 91(2) further states that the MEC may, by notice in the Provincial Gazette, give notice that:

'(a)

one or more or all the routes or ranks in such a declared area are closed for the operation of any type of public transport service, for the period stated in the notice;

(b)

any operating licence or permit authorising any of the services referred to in paragraph (a) on a closed route or routes or at a closed rank or ranks in the declared area is suspended for the relevant period;

(c)

subject to subsection (6), no person may undertake any of the services referred to in paragraph (a) on a closed route or routes or at a closed rank or ranks in the declared area or in terms of an operating licence or permit suspended as contemplated in paragraph (b) for the relevant period.'

[3] The manner in which the MEC has sought to achieve the objective of commuter safety in Ladysmith, KwaZulu-Natal, was to impose a suspension of the long distance taxi routes operated by the members of the first applicant (Klipriver Taxi Association (KTA)) and the second respondent (Sizwe Transport Association (Sizwe)). The suspension of operations was the catalyst for the application launched in November 2018 in which KTA brought an urgent application seeking interim relief that suspension of taxi operations by the MEC, published in Provincial Gazette, Extraordinary, 10 October 2018, be uplifted. Pending the grant of interim relief, KTA sought to review and set aside the MEC's decision to impose the suspension. On 12 December 2018 after hearing argument from both counsel for the KTA and the MEC I granted an order lifting the suspension, pending the review application of the MEC's decision of 10 October 2018. The matter was adjourned to 21 February 2019 before me.

[4] Prior to the present application being launched, a series of applications were brought by the KTA against the MEC and Sizwe in relation to its taxi operations in Ladysmith. By way of background, in June 2017 KTA under case No 6035/2017 obtained an interim order in this court interdicting members of Sizwe from intimidating KTA members

2020 (3) SA p450

Chetty J

who were seeking to utilize routes designated to the applicant association. In addition, Sizwe was interdicted from demanding payment from KTA members in exchange for them using the routes allocated to their own association. In addition, Sizwe was directed to produce any licences or permits issued to it, in which certain designated routes are described. The MEC was directed to enforce the routes assigned to the members of KTA and to take necessary steps to ensure that these routes were not used by Sizwe and its members. The MEC chose to abide the interim order, which was set down for confirmation on 7 November 2018. According to the KTA, Sizwe failed to obey the order resulting in a pattern of violence against it (KTA) continuing.

[5] Although the MEC disputes the allegation, KTA contends that the MEC failed to take any measures to implement the order of 8 June 2017 and instead resorted to suspend all operations of KTA and Sizwe (Ladysmith), as well as declaring 'emergency...