National Transport Commission and Another v Chetty's Motor Transport (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Holmes JA, Wessels JA, Trollip JA, Rabie JA and Kotzé AJA
• Judgment Date: 30 May 1972
• Citation: 1972 (3) SA 726 (A)
• Hearing Date: 15 May 1972
• Court: Appellate Division

Holmes, J.A.:

The factual background to this appeal is as follows -

1.

A The Local Transportation Board, sitting in Pietermaritzburg in August, 1969, had before it two applications for motor carrier certificates by established operators. One, dated February, 1969, was by the City Council of Pietermaritzburg for a certificate for one bus to carry non-European passengers along the route between Churchill Square and Newholme, the latter being within the Raisethorpe complex for Indians, in the municipal area. The other, a rival application dated June, 1969, was by Chetty's Motor Transport (Pty.) Ltd., for two certificates over much the same route, from East Street to Newholme.

2.

The two applications were reciprocally opposed.

3.

C At the hearing it was common cause between the parties and the board that there was a need for further transportation services on the route. The only issue to be decided by the board was which of the applications should be granted. Evidence was led and argument was addressed by the representatives of both sides.

4.

D The Council contended -

(a)

that it was the only operator already serving the Raisethorpe area, and that it should therefore be granted the authority to serve the Newholme area which is within the Raisethorpe complex;

(b)

E that the granting of the Chetty application would adversely affect the municipal bus service.

5.

The Chetty company contended -

(i)

that it was Indian-owned and wished to convey Indians to and from an Indian Township (Newholme), and that the Board should F therefore give it preference in terms of sec. 13 (2) bis of the Motor Carrier Transportation Act, 39 of 1930, as amended;

(ii)

that it was providing and efficient service with 14 certificates from Pietermaritzburg to the Bantu area of G Edendale, but that because of Government policy it would be compelled to relinquish that service in order to afford Bantu operators the opportunity of serving their own race group;

(iii)

that it was right and in conformity with Government policy that the Chetty company should be afforded an opportunity of serving Asiatics;

(iv)

that the Council's bus service was unsatisfactory;

(v)

H that the residents would prefer an Indian service conveying only Asiatics and employing Indian drivers and conductors.

6.

The Board, after reserving its decision, granted the Chetty application. In its reasons -

(a)

it made no mention of the Council's main contention under 4 (a), supra ;

(b)

it held against the Council's contention under 4 (b);

Holmes JA

(c)

it adopted the Chetty contentions, save that it made no finding under 5 (ii) and (iv) thereof.

Hence the gist of its delectus in favour of the Chetty company was sec. A 13 (2) bis of the Act, and the local acceptability of an Indian-operated service.

7.

The City Council appealed to the National Transport Commission. That body hears applications afresh, despite the term 'appeal'. There were several grounds of appeal, the most relevant being -

(i)

B The board attached undue importance to the fact that the shareholders of the Chetty company are Indians, and allowed this fact to outweigh more important considerations set forth in sec. 13 of the Act.

(ii)

The board failed to appreciate that the introduction of a new C operator on a route served exclusively by the City Council would cause unnecessary difficulty in the co-ordination of services.

(iii)

The board failed to attach sufficient weight to the representations of the Council in its capacity as the local authority.

8.

D In Pietermaritzburg the Commission, consisting of a quorum of three members, heard addresses and factual submissions on the merits from the same representatives of the parties, who elected not to lead evidence save that certain schedules were handed in on behalf of the Council.

9.

E The Commission reserved its decision and thereafter granted the City Council's application for an additional certificate, and refused the application of the Chetty company for two certificates. Despite request, the Commission gave no reasons, not being statutorily required to do so; but, in an affidavit in the present proceedings, the chairman of the Commission stated that it was F aware of all the foregoing facts, and was fully aware of the locality to which the applications related; that the merits were fully canvassed before it; that it gave full consideration thereto; that it was unconvinced of the need for two certificates for the area in question; that it applied the provisions of sec. 13 (2) ter G of the Act; that it made its decision in good faith; and that all three of its members considered the facts put before them with unbiassed minds, and honestly and unanimously decided to grant the Council's application for one certificate.

10.

Against the Commission's decision the Chetty company instituted proceedings by way of review in the Natal Provincial Division submitting -

(a)

H that there could be no valid basis for the Commission's decision;

(b)

that its decision was so grossly unreasonable as to be arbitrary; and

(c)

that the only inference which could be drawn from the decision was that -

(i)

the Commission did not properly apply its mind to the issues before it; or

Holmes JA

(ii)

the Commission was motivated by considerations which were completely extraneous to the issues and which should not have been entertained at all.

11.

The Natal Provincial Division set aside the decision of the A Commission as being grossly unreasonable in the extended sense, and ordered the matter to be sent back to it for consideration afresh.

12.

Against that decision, the Commission and the City Council have appealed to this Court.

I think it would be helpful at this stage to mention certain relevant B statutory provisions -

The National Transport Commission (the first appellant) was appointed in terms of sec. 3 of the Transport (Co-ordination) Act, 44 of 1948, as amended. It includes members who possess wide experience of and have shown ability in transport, or aviation, or industrial, commercial or C financial matters or in the conduct of public affairs; see sec. 3 (4). Three members constitute a quorum (subject to certain provisos not here relevant; see sec. 6 (4).

'The object of the Commission shall be, subject to the provisions of this Act or any other law, to promote and encourage the development of transport in the Republic and, where necessary, to co-ordinate various phases of transport in order to achieve the maximum benefit and economy D of transport services to the public.'

See sec. 7.

With particular reference to motor carrier transportation, the function of the Commission is stated to be -

'to advise and direct local road transportation boards, appointed under sec. 3 of the Motor Carrier Transportation Act, 1930, in the E exercise of their powers and the performance of their function under the Act'.

See sec. 9 (ii).

In sec. 1 of the Motor Carrier Transportation Act, 39 of 1930, as amended, the Commission is referred to as the 'Board' (spelt with a F capital 'B' to distinguish it from the 'local board', i.e. the local road transportation board). And, in terms of sec. 5 (1) (f), one of the functions of the Commission is

'to hear and determine appeals from the decisions of local boards in terms of sub-sec. (2) of sec. 6'.

The latter provision reads -

'Whenever a local board has performed any act or given...