MEC for Roads and Transport Gauteng Province v Witwatersrand African Taxi Owners Association and Others

• Jurisdiction: South Africa
• Judge: D Dosio J
• Judgment Date: 20 May 2022
• Docket Number: 21/51435
• Hearing Date: 20 May 2022
• Court: Gauteng Local Division, Johannesburg
• Citation: 2022 JDR 1361 (GJ)

Dosio J:

INTRODUCTION:

[1]

This is an urgent application in terms of the provisions of Uniform Rule 6(12)(c) whereby the MEC for Road and Transport, Gauteng Province ('the MEC') seeks an order interdicting the first respondent ('WATA') from utilising an informal taxi rank situated at the corner of Commissioner and Sauer Street Johannesburg. The MEC also seeks an order interdicting the second respondent ('NANDUWE') and its members from picking up (touting) commuters along Commissioner Street, Johannesburg. Having decided it is urgent, I proceeded to consider the matter.

[2]

WATA opposes the relief sought on the following grounds:

2.1

That the rank has been in existence for more than 40 years and the MEC's concerns that the rank is a breeding ground for violence are unfounded in that the MEC is in possession of a consent order dated 16 October 2021 interdicting such conduct.

2.2

That the MEC lacks locus standi to seek interdictory relief against it, in that issues of where ranking facilities are to be positioned and the authority regarding ranking facilities falls squarely within the powers of the sixth respondent ('the Johannesburg Municipality');

2.3

That the MEC's failure to comply with ss91(3) and 91(4) of the National Land Traffic Act 5 of 2009 ('the NLTA'), makes the application fatally defective;

2.4

That at the meeting held between the MEC, WATA and NANDUWE on 20 October 2021, the MEC held no bona fide fear of any reasonable apprehension of harm or prejudice and in fact stated that the ranking facilities could be shared between WATA and NANDUWE.

[3]

NANDUWE opposes the relief sought on the following grounds:

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3.1

That the application is an abuse of the Court process because the MEC is asking the Court to decide the legality or illegality of the operations by the members of NANDUWE requiring the Court to do an examination of the authority contained in its operating licences and to determine whether they are operating in compliance with that authority.

3.2

That the NLTA provides for:

3.2.1

law enforcement officers (authorised officers) who are specialists with powers, to perform compliance and enforcement duties;

3.2.2

he fourth respondent, the Gauteng Provincial Regulatory Entity ('the GPRE'), to withdraw, suspend, or amend operating licences of operators in the event that they are operating illegally and not in compliance with the conditions of their operating licences; and

3.2.3

emergency powers granted to the MEC where there is violence, unrest or instability, or risk of danger to the safety of passengers and other persons. These powers include the right to suspend operating licences, close routes and ranks in such areas;

3.2.4

the observance of rules of natural justice, to ensure that the rights of individuals are not violated, by prescribing steps to be followed and jurisdictional facts that must pre-exist.

[4]

NANDUWE contends that for the Court to exercise executive powers by deciding on the legality and imposing a sanction may result in a real and serious risk of the Court granting orders which are brutum fulmen. This is because the persons and institutions established by the NLTA, upon exercising the powers, would differ with the conclusions of the Court.

BACKGROUND:

[5]

In the early morning of 16 October 2021, violence erupted in the Johannesburg CBD between WATA and NANDUWE who are both taxi associations operating between Soweto and Johannesburg. The violence led to the burning of

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several minibus taxis belonging to WATA and NANDUWE. The MEC approached this Court on an extreme urgent basis seeking a rule nisi against WATA and NANDUWE calling upon the respondents to show cause, if any, why the following orders should not be made final, namely:

'(a)

The first to Third Respondents, the Chairpersons of the First and Third Respondents and or their members are interdicted from preventing, obstructing, or otherwise interfering with the rights of taxi operators and or any public transport operators to operate their transport business between Soweto and Johannesburg CBD.

(b)

The First to the Third Respondents, the Chairpersons of the First and Third Respondents and or their members are interdicted from intimidating, committing, or threatening to commit acts of violence against any public transport operator or their agents or employees and members of the public who make use and who wish to make use of the bus service between Soweto and Johannesburg CBD, and

(c)

Should the First to Third Respondents fail or refuse to comply with this court order, members of the South African Police Service or Community Safety Department, Gauteng Province are hereby authorized to take necessary steps to ensure that the First to Third Respondent comply with this court order.

(d)

The First to third respondents, jointly and severally one paying the other to be absolved are directed to pay the costs of the application.

3.

Paragraphs 1(a) to 1(c) above shall operate with interim effect.

4.

The Rule Nisi is extended until confirmed or discharged.

5.

It is recorded that this order is granted by consent between the Applicant and the First and Second Respondents.'

[6]

WATA and NANDUWE were the first and second respondents respectively in the rule nisi granted on 16 October 2021. The application was brought by the MEC pending the finalisation of the verification of taxi route allocations to WATA and NANDUWE

[7]

The above prayers have since been operating on an interim basis.

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[8]

It appears that the dispute between the MEC, WATA and NANDUWE started in late 2015. NANDUWE followed the NLTA and lodged a complaint to the GPRE, whereupon the GPRE on 16 February 2016 wrote a letter, undertaking to convene an inquiry in terms of s79(2) of the NLTA and finalise the dispute in six (6) weeks. The GPRE failed to convene a s79(2) inquiry and NANDUWE had to approach the High Court for urgent relief because of the failure of the GPRE. On 8 June 2021, the High Court granted an order directing the GPRE to convene a ss25 and 79 Inquiry within six (6) weeks to define and describe the routes. The GPRE once again disregarded the court order. The GPRE only convened the s79(2) inquiry in February 2017 and issued a ruling on 29 May 2017, of which ruling WATA took on appeal to the Transport Appeal Tribunal ('the TAT').

[9]

On 27 November 2017, the TAT directed the GPRE to conduct a s79(2) inquiry again from scratch, giving proper notice to the operators involved. The TAT also directed the GPRE to finalise the s79(2) inquiry by 29 March 2019, (in 4 months) which to date has still not been done.

LOCUS STANDI OF THE MEC:

The MEC's submissions on locus standi

[10]

The MEC's counsel argued that the issue pertaining to the locus standi of the MEC has no merit and must be dismissed. Counsel argued that as the administrator and regulator of public transport in the province, the MEC has the necessary locus standi to interdict the use of an illegal taxi rank and or touting, in that the MEC has the prescribed power to close routes and taxi ranks temporarily in terms of s91 of the NLTA.

[11]

Counsel argued that on a proper construction of the legislation under consideration, it could not have been the intention of the legislature to give the MEC powers to close ranks temporarily but deny the MEC any powers to administer and regulate illegal taxi ranks. Such interpretation violates basic interpretation of statute principles.

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W ATA'S submissions in respect to the lack of locus standi of the MEC

[12]

WATA's counsel argued that the MEC does not have the locus standi to shut down the informal rank if the sole reason for doing so is that it is an informal rank. It was contended that the MEC's responsibilities are identified in s11(1)(b) of the NLTA and that the regularisation of 'informal' taxi ranks does not fall within the powers given to the MEC in terms of this section.

[13]

Counsel stated that taxi ranks are expressly dealt with by ss3(1), 3(4) and 11 of the Johannesburg Municipality's Public Transport By-Law ('Johannesburg Transport By-Law') and that it is the Johannesburg Municipality who is expressly empowered to prohibit certain transgressions and to demand that such conduct cease.

Conclusion on the locus standi of the MEC:

[14]

It is important to consider carefully sections 1; 5(6); 8; 9(2); 10 and 11(1)(b) of the NLTA to confirm whether the MEC has locus standi to initiate this application.

[15]

Section 5(6) of the NLTA states that:

'(6)

When a province or municipality cannot or does not fulfil an executive obligation in terms of matters relating to public transport, the Minister may intervene by taking the appropriate steps to ensure the fulfilment of that obligation, including issuing a directive to the provincial executive or municipal council, describing the extent of the failure to fulfil its obligations and stating any steps required to meet its obligations and the provincial executive or municipality must comply with such directive.'

[16]

Section 8 of the NLTA states that:

'8. (1)

The Minister may, after consultation with the MECs, make regulations relating to-

(a)

any matter which may or must be prescribed by way of a regulation under this Act;

(b)

requirements for integrated fare systems, comprising fare structures, levels and technology, to ensure compatibility between such systems;

(c)

national norms and standards relating to the qualifications and conduct of inspectors;

(d)

a process to be followed for offering alternative services in the place of existing servicesto holders of operating licences or permits under section 39;

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(e)

the types of...