Local Road Transportation Board and Another v Durban City Council and Another

• Jurisdiction: South Africa
• Judge: Beyers JA, Van Blerk JA, Ogilvie Thompson JA, Holmes JA and Van Winsen AJA
• Judgment Date: 19 November 1964
• Citation: 1965 (1) SA 586 (A)
• Hearing Date: 12 November 1964
• Court: Appellate Division

Holmes, J.A.:

This is an appeal, direct to this Court by consent, from a decision of MILLER, J., sitting in the Durban and Coast Local

Holmes JA

Division, confirming a rule nisi in favour of the Durban City Council and the Durban Transport Management Board, now respondents, against the Local Road Transportation Board, and Public Utility Corporation Ltd., A now appellants. I shall refer to the parties respectively as the Council, the Management Board, the Local Board, and Putco.

The factual background is as follows:

1.

For many years the Council directly conducted an extensive public transport undertaking in and about the City of Durban, by virtue of B motor carrier certificates issued to it by the Local Board under the provisions of the Transportation Act, 39 of 1930. These certificates were issued to it in the name of the Durban Corporation Transport Department.

2.

In 1952 it established and constituted the Management Board, by C virtue of the powers vested in it by Ord. 32 of 1950 (N), as to which see now Ord. 10 of 1953 and sec. 13 of Ord. 19 of 1954 (N).

3.

When the certificates fell due for renewal in July, 1953, the application therefor was made by the newly established Management Board. D The application was treated as one for the renewal of the existing certificates and was granted as such. The Local Board issued the certificates to and in the name of the Management Board. Thereafter, for several years, applications were similarly made by this Board for the renewal of existing or the issue of new certificates, and these were granted to it by the Local Board.

4.

E In 1959 the Management Board was operating a service from Durban to the Bantu area of Umlazi about 12 miles to the south. In 1961 Putco became a competitor on these southern routes by purchasing the transportation service of two operators. 5. In July, 1962, the Local F Board granted Putco further certificates in respect of the southern routes, while the Management Board's applications in respect of such routes were for the most part refused. On 27th July, 1962, the Management Board, acting in the name and on behalf of the Council, lodged an appeal with the National Transport Commission against the G foregoing decisions, and the appeal was set down for hearing on 16th August, 1962.

6.

At that time the Management Board held in its name a total of 158 certificates in respect of vehicles for European passengers, and 146 in respect of vehicles for non-European passengers. These had been issued H to it during 1962 in respect of the period ending 31st December, 1962.

7.

At the hearing of the afore-mentioned appeal, the Commission upheld a preliminary point raised by Putco that the applications by the Management Board were ultra vires 'in that they were not submitted in the name of and on behalf of the Durban City Council'. The Commission decided, however, that the Council be given an opportunity to submit applications in terms of the proviso to sec. 13 (3) of Act 39 of 1930.

Holmes JA

8.

Thereafter the Management Board applied 'in the name of and on behalf of the Council' for 146 certificates in respect of the conveyance of non-European passengers. The application was stated to be for certificates in substitution of those presently held in the name of the A Management Board. Nineteen of them related to the southern routes. After an amended publication of this application, on 26th October, 1962, Putco drew the attention of the Local Board by letter to the Commission's ruling on 16th August, 1962, that applications made by the Management Board in its own name were invalid. Putco's letter went on to B contend that thereby any and all certificates which had been issued in the name of the Management Board were equally invalid. Wherefore, continued the letter, this application for 146 certificates was being made by a new applicant, namely the Council; and Putco, as an existing operator, wished to have an opportunity, under the proviso to sec. 13 C (3) of the Act, to lodge an application in respect of the southern routes.

9.

The Council contended that Putco's letter amounted to an objection only in respect of the 19 certificates sought for the southern routes, and that the remainder of the application was unopposed. The Local Board D apparently accepted this contention and, on 6th November, 1962, in the absence of Putco, granted the application in respect of 127 certificates. The hearing in respect of the 19 certificates relating to the southern routes was later adjourned, to afford Putco an opportunity of lodging its own application thereanent. In the result, 127 certificates previously held by the Management Board were surrendered E and were replaced by an equal number granted in the name of the Council. Putco noted an appeal to the Commission, but it has not yet been heard. A similar application was made by the Management Board, acting in the name of and on behalf of the Council, for 158 certificates F in respect of the European-type vehicles of the Council's transport undertaking. This application has not yet been heard.

10.

As all the certificates would expire on 31st December, 1962, the Management Board, acting in the name of and on behalf of the Council, G applied to the Local Board on 19th December, 1962, for the renewal of the certificates, more than 300 in number, covering the whole of the Council's fleet of buses for public transport, for the year ending 31st December, 1963. The hearing took place only on 10th December, 1963. Putco, which had been given notice of the application, contended that H none of the certificates, whether issued in the name of the Management Board or in the name of the Council, could be renewed, because they were all invalid and it was impossible to renew a nullity. The Local Board gave its decision on 12th December, 1963, when it rejected the Council's entire application in respect of all the certificates.

11.

The gist of the Local Board's reasons, as given later, was that the Management Board never had power to apply for certificates

Holmes JA

in its own name; that therefore all certificates issued to it were a nullity; and that, as regards the 127 certificates which were issued to the Council on 6th November, 1962, these were also a nullity since the A Local Board had wrongly 'transferred' them from the Management Board to the Council.

12.

Thus frustrated in its entire transport undertaking, and averring its apprehension of chaos and possible violence if the public were so deprived, the Council, joining the Management Board as co-applicant, on 19th December, 1963, sought and obtained relief from the Court a quo in B the form of a rule nisi, calling upon the Local Board and Putco to show cause:

(a)

why the decision of the Local Board dated 12th December, 1963, should not be set aside;

(b)

why it should not be declared -

(i)

C that the certificates issued in the name of the Management Board during 1962 were validly issued to and held by it, acting on behalf of the Council as its duly authorised agent;

(ii)

that the certificates issued to the Council on 6th November, 1962, were validly issued.

D Pending the return day of the rule nisi, the Local Board was ordered forthwith to grant the applications made by the Management Board in the name and on behalf of the Council, for the renewal for 1963 of all the certificates relating to its transport undertaking.

13.

E On the return day, which had been extended to 18th March, 1964, the Local Board and Putco opposed the relief sought. On 15th April in a considered judgment the Court a quo confirmed the rule nisi in the respects lettered (a) and (b) supra, and ordered that the certificates, which had been issued pending the return day, stand as renewed for the F year 1963. Costs were granted against the Local Board and Putco jointly and severally.

In this Court the first contention in the appeal by the Local Board and Putco was that MILLER, J., erred in holding that it was competent for the Council and the Management Board to approach the Court without G having first exercised their right of appeal to the National Transport Commission under sec. 6 (2) of Act 39 of 1930 (read with the...