Maharaj and Others v Rampersad

• Jurisdiction: South Africa
• Judge: Steyn CJ, Ogilvie Thompson JA, Rumpff JA, Wessels JA and Van Winsen AJA
• Judgment Date: 24 September 1964
• Hearing Date: 11 September 1964
• Court: Appellate Division

Van Winsen, A.J.A.:

This is an appeal from a judgment delivered by CANEY, J., in the Natal Provincial Division in proceedings in which appellants sought to review a decision by the National Transport Commission granting respondent two motor carrier certificates entitling him to operate a bus service between Durban and a road on the outskirts of that City.

A The matter has a somewhat involved and protracted history all the details of which are not germane to the issues before this Court. The simple issues here are:

(1)

whether the terms of reg. 4 (2) of the Motor Carrier Transportation Regulations of 1956, in so far as they provide for a plan or map tracing to be attached to an application made B to a local road transportation board for a motor carrier certificate, are peremptory in the sense that a failure to comply therewith renders the proceedings before such local board a nullity; and

(2)

whether that part of reg. 4 (2), which requires the route in respect of which a certificate is sought to be fully described in the application form aforesaid, is peremptory and, if so, C whether the description contained in respondent's form of application complies with the requirements of that regulation.

The appellants and respondent are bus operators operating a number of buses on a route from Winterton Walk, near the main business centre of D Durban, to various termini on the outskirts of Durban. On 11th November, 1961, respondent had applied to the Local Road Transportation Board, Durban, for two motor carrier certificates to operate a service between Burnwood Road and Winterton Walk. The present appellants, who were then, upon the basis of a communal timetable, operating a portion of their bus services from Winterton Walk to various termini in the nighbourhood of Burnwood Road, objected to the grant of this E application. At about the same time one of the present appellants applied to the Board for an amendment of one of his existing motor carrier certificates with a view to obtaining authority to deviate his buses from the route which they were following so as to serve the public in the area of Burnwood Road. On 10th April, 1962, the Board granted respondent's application and refused that of the appellant above F referred to. Subsequently, however, on 18th September, 1962, the National Transport Commission on appeal set aside the Local Board's grant of respondent's application and also dismissed an appeal by the appellant above referred to against the decision of the Local Board refusing his application. In the result, therefore, no motor carrier certificates were granted which would authorise operation of a bus service to Burnwood Road.

G On 28th September, 1962, respondent made a fresh application to the Local Board for two motor carrier certificates to serve Burnwood Road. Appellants again objected and sometime later themselves applied for an amendment of their certificates which would allow them to deviate certain of their services to serve Burnwood Road. On this occasion the H Local Board refused respondent's application but granted that of the appellants. In addition it authorised an amendment of respondent's road transportation certificate so as to allow him to join in with the appellants on a communal basis in serving Burnwood Road.

Van Winsen AJA

Against these decisions respondent appealed to the National Transport Commission which duly upheld these appeals and in so doing granted respondent, subject to certain restrictive conditions, two motor carrier certificates to operate between Winterton Walk and Burnwood Road. It is A this decision which the appellants sought to review before the Natal Provincial Division.

The appellants attacked the National Transport Commission's decision on two grounds, only one of which is germane to the present enquiry. This ground is to the effect that respondent failed to attach to his application a plan or map tracing disclosing the route to be followed B between Winterton Walk and Burnwood Road. It was contended that the provisions of reg. 4 (2) of the regulations promulgated in terms of sec. 19 of Act 39 of 1930 under Government Notice 5710 dated 29th June, 1956, required, in peremptory terms, that such a plan or map tracing be attached to respondent's application and it was averred that respondent had in fact failed to comply with this requirement. Whether or not there C had been such a failure on respondent's part was an issue of fact in the Court below. Viva voce evidence was heard thereon and that Court decided that respondent had not attached any plan to his fresh application made on 28th September, 1962, as above referred to. This finding is not challenged on appeal. What is challenged, however, is the finding of the Court a quo that reg. 4 (2), in so far as it provides for D a plan or map tracing to be attached to an application form for a motor carrier certificate, is directory and not peremptory in its terms and that the respondent had in fact substantially complied with the provisions of that sub-regulation.

When an application for the grant of a motor carrier certificate is received by the Local Board it is required, before granting or refusing E it, to publish, in a manner prescribed by regulation, particulars of such application and afford any person an opportunity to oppose or support such application. Sec. 19 of the Act confers power upon the Minister of Transport to make regulations concerning the manner in which any application to the Local Board shall be made, the information to be submitted therewith and the fees to be paid in connection with such F application. The Act also prescribes (sec. 13) what factors the Local Board must have regard to in determining whether to refuse or grant an application for a certificate and provides (sec. 7) that every such certificate issued by the Local Board shall specify, inter alia, the person in whose favour it is issued, the period for which it is issued and

'the points between and the route or routes upon which or the area or areas within which the vehicle to which it refers may be used in motor carrier transportation'.

G In pursuance of the powers...