Roberts v Chairman, Local Road Transportation Board and Others (2)

• Jurisdiction: South Africa
• Judge: Friedman J and Fagan J
• Judgment Date: 14 January 1980
• Citation: 1980 (2) SA 480 (C)
• Court: Cape Provincial Division

Friedman J:

This application concerns the validity of a direction by the National Transport Commission (hereinafter referred to as the Commission) to the Local Road Transportation Board, Cape Town (hereinafter referred to as the Local Board), to refer an application made by City Tramways Ltd (third respondent) for amendments to its public road carrier permits to B the Commission for consideration, as well as the validity of the referral by the Local Board pursuant to such direction. The various issues raised will require separate consideration. It will be convenient, however, before dealing with each of these issues, to set out the salient facts which have given rise to the present dispute.

In June 1979 third respondent filed with the Local Board an application C for an increase in fares in respect of 734 buses operated by it in terms of a public road carrier permit, issued to it in terms of the Road Transportation Act 74 of 1977. This application was granted by the Local Board on 3 July 1979. On 21 August 1979 this Court, at the instance of the present applicant, granted an order setting aside the decision of the Local Board. (A synopsis of the judgment against which an appeal - which D has since been withdrawn - was noted, appears in 1979 (4) SA at 654.) [*] On 31 August 1979, third respondent lodged with the Local Board a fresh application for an increase of tariffs in respect of its 734 buses.

At all relevant times up to 10 September 1979 the Local Board consisted of E three members, namely Mr F H S Nel, the chairman, and Messrs H van Huyssteen and W H Sceales. On 10 September 1979 the members of the Local Board recused themselves from considering third respondent's new application for increased fares. On 12 September 1979 the Minister of Transport Affairs appointed an ad hoc Board to consider third respondent's F application. This was announced by a notice in the Government Gazette of 21 September 1979 reading as follows:

'Appointment of an ad hoc Local Road Transportation Board for the transportation area of Cape Town.

Under the powers vested in me by s 4 (7) of the Road Transportation Act 74 of 1977 I, Jan Christiaan Heunis, Minister of Transport Affairs, declare that the following persons are appointed as an ad hoc Local Road Transportation Board for the transportation area of Cape Town to consider G the application for the increase of bus tariffs by the company City Tramways Ltd:

Mr W G Miller: chairman.

Mr H J P Schutte: member.

Mr R M Friedlander: member.

J C Heunis, Minister of Transport Affairs.'

One of the appointees, viz R M Friedlander, recused himself and on 18 H October 1979 the Minister appointed a Mr Visser to replace him. The ad hoc Board advised objectors, of whom applicant was one, that it would meet on 23 October 1979 to consider third respondent's application. At the hearing on 23 October 1979 applicant was represented by counsel and other objectors were represented by counsel and attorneys. At the commencement of the proceedings applicant's counsel took the point that the ad hoc Board was not properly constituted and had no jurisdiction to

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hear the application. The ad hoc Board ruled that it had jurisdiction, whereupon applicant's counsel asked for an opportunity to test the ruling A by way of a review in this Court, and requested a postponement of the hearing before the ad hoc Board pending determination of the contemplated review proceedings. The ad hoc Board acceded to this request and further ruled that, if review proceedings were not instituted by the close of Court hours on 30 October 1979, the hearing would be resumed on 72 hours' notice.

B The next day, ie on 24 October 1979, third respondent's managing director, Mr J Barnard, accompanied by third respondent's counsel, proceeded to Pretoria where interviews were held with the chief government law adviser, Mr G F Smalberger, and the Secretary for Transport. There is a dispute on the papers as to the object and scope of these interviews and C I shall return to this issue later. Suffice it to say at this stage that, following on these interviews, a meeting of the Commission was held the same afternoon. At that meeting, which was attended by three members of the Commission, it was decided to direct the Local Board to refer, inter alia, third respondent's application for increased tariffs to the D Commission for consideration and decision in terms of s 7 (2) of Act 74 of 1977. The minutes of this meeting were, by resolution, confirmed at the next meeting of the Commission held on 26 October 1979.

On 25 October 1979 the Local Board was directed to refer the application to the Commission and applicant's attorneys were notified of this by telex. Applicant's attorneys were, at the same time, advised that the E hearing by the Commission would take place in Cape Town on 14 November 1979. Upon receipt of the directive from the Commission, the application was referred to the Commission by the secretary of the Local Board, one Van der Westhuizen, acting on the instructions of the chairman, ie first respondent. This occurred on 26 October 1979. On the same date two members F of the ad hoc Board, namely Messrs Miller and Schutte, resigned. The third member tendered his resignation at the beginning of November 1979.

On 5 November 1979 applicant's attorneys were informed by Mr P L Erasmus, a legal adviser to the Department of Transport, that he was of the view that the application should be re-advertised and that the hearing G scheduled for 14 November 1979 would be postponed to 5 December 1979. The application was re-advertised in the Government Gazette of 9 November 1979.

On 28 November 1979 applicant launched the present proceedings citing the chairman of the Local Board as first respondent, the chairman of the H Commission as second respondent and City Tramways Ltd as third respondent. After the respondents' opposing affidavits had been filed and after the minutes of the meetings of the Commission held on 24 and 26 October 1979 had been made available to his attorneys, applicant amended his notice of motion and supplemented his founding affidavit in terms of Rule of Court 53 (4). In its amended form the notice of motion calls on the respondents to show cause why:

'(a)

The decision of the Local Road Transportation Board, Cape Town (hereinafter referred to as 'the Local Board'), made on or about 25 October 1979 (the exact date being to the applicant

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unknown), in which it referred to the National Transport Commission (hereinafter referred to as 'the Commission') for the consideration and decision of the latter the application A made by the third respondent to the Local Board for the approval of tariff increases in respect of 734 buses (particulars of which were purportedly published in the Government Gazette 6663 of 21 September 1979), should not be reviewed, corrected, and/or set aside;

(b)

the decisions of the Commission made on 24 and 26 October 1979 B at Pretoria directing the Local Board to refer the said application for consideration and decision to the Commission, should not be reviewed, corrected and/or set aside;

(c)

any associated or related decisions, the details of which are unknown to the applicant but which may emerge from the C affidavits or record should not be reviewed, corrected and/or set aside;

(d)

a declaration of rights should not be granted declaring that the purported reference by the Local Board of the said application by third respondent to the Commission for consideration and decision is a nullity and of no force and effect;

(e)

D a declaration of rights should not be granted declaring that the meeting of the Commission on 24 October 1979 was not properly convened and/or that the decision arrived at at such meeting was a nullity and of no force and effect;

(f)

a declaration of rights should not be granted declaring that E the Commission has no jurisdiction to consider and decide the said application;

(g)

an order should not be granted interdicting and/or restraining the Commission from considering the said application;

(h)

why further or alternative relief should not be granted;

(i)

F why first and second respondents should not be ordered to pay the costs (no order of costs is sought against third respondent except in the event of its opposition);

(j)

a declaration of rights should not be granted declaring that the directive purportedly issued by the Commission to the Local Board on 25 October 1979 was issued without jurisdiction and G was a nullity and of no force and effect and that any reference made in response to such directive was in consequence a nullity and of no force and effect;

(In the notice of amendment applicant referred to this paragraph as a new prayer 'g', but he presumably meant 'j'.)

(k)

H A declaration of rights should not be granted declaring that any decision taken by the Commission on 26 October 1979 was ineffective and a nullity and of no force and effect.'

In regard to the decision of the Commission to direct the Local Board to refer the application to the Commission for consideration and decision, a number of contentions were advanced on applicant's behalf. I propose to set out and deal with each of these contentions separately.

1.

In view of what had occurred at the meeting of the ad hoc Board on 23 October 1979 the whole matter was sub judice and the

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contemplated review proceedings were from that moment pending before this Court. Consequently none of the parties to the proceedings A before the ad hoc Board on 23 October 1979 (ie third respondent, the objectors and the Board) could do anything to disturb the arrangement made on 23 October 1979. At the very least it was improper for third respondent to take any steps contrary thereto, such as to prevail upon the Commission...