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

• Jurisdiction: South Africa
• Citation: 1980 (2) SA 480 (C)

Roberts v Chairman, Local Road Transportation Board and Others (2)
1980 (2) SA 480 (C)

1980 (2) SA p480

Citation	1980 (2) SA 480 (C)
Court	Cape Provincial Division
Judge	Friedman J and Fagan J
Heard	December 12, 1979; December 13, 1979; December 14, 1979
Judgment	January 14, 1980

Flynote : Sleutelwoorde

Carrier — Motor carrier transportation — Bus company applying to Local

1980 (2) SA p481

Road Transportation Board for increase in bus fares — Granting of — Decision set aside on review — Company lodging a fresh application — A Members of Board recusing themselves — Minister of Transport appointing an ad hoc Board — Objector applying for postponement on the ground Board as constituted not competent to entertain application — Objection overruled — Postponement granted to test such ruling on review — Company thereupon interviewing Secretary of Transport — Meeting of National Transport Commission then held — Only three members of National Transportation B Commission present — Decision taken that Local Board should have matter referred to Commission for consideration in terms of s 7 (2) of Act 74 of 1977 — Objector applying to have such referral set aside — Basis that after postponement matter frozen, that the audi alteram partem rule not applied, that meeting with Commission not in terms of Act 44 of 1948 and that the Commission had not considered the matter properly — Application C refused.

Carrier — Motor carrier transportation — Direction by National Transportation Commission to Local Road Transportation Board to have D matter referred to it in terms of s 7 (2) of Act 74 of 1977 — Local Board must obey that directive.

Carrier — Motor carrier transportation — National Transport Commission — Meeting of — When properly constituted — Members out of reach — What amounts to.

Maxims — Audi alteram partem rule — When applicable to functions of a statutory body.

Headnote : Kopnota

It is only when a statutory body exercises judicial or quasi- judicial functions that the audi alteram partem rule is implied.

The determination of the question whether a statutory tribunal, in reaching a decision, is exercising a purely administrative function (in which event the audi alteram partem principle does not apply) or whether it is exercising a quasi- judicial function (in which case the implication F is that the audi alteram partem maxim applies unless excluded expressly or by necessary implication) depends on the construction of the relevant statutory provisions. This depends, firstly, on whether the legislation properly construed envisaged an enquiry by the tribunal into matters of fact or of fact and law, and, secondly, on whether the decision of the tribunal can be said to be one which may affect the rights of or involve civil consequences to individuals.

For a meeting of a corporate body to be duly constituted, notice must be given to all members who are entitled to be present. There is, however, an exception to this rule, namely that notice need not be given to a member who is out of reach.

In terms of s 7 (2) of Act 74 of 1977, when a Local Board is directed by the National Transport Commission to refer an application to it, the Local H Board is obliged to obey that directive. It has not discretion and does not require a decision taken at a meeting before the directive is complied with.

An application by the third respondent, the City Tramways Ltd, to increase the tariff of its fares on buses had been granted by the first respondent but this decision had been set aside by the Supreme Court on 21 August 1979. On 31 August 1979 the third respondent lodged a fresh application for an increase. On 10 September the members of the Local Board recused themselves and the Minister of Transport then appointed an ad hoc Board to consider the application. On 23 October the Board met, but the applicant objected on the ground that the Board was not properly constituted and had not jurisdiction to hear the application. The Board ruled against the applicant and the

1980 (2) SA p482

applicant requested a postponement to test this decision. This postponement was granted. On 24 October, the managing director of the third respondent and its counsel went to Pretoria to interview the A Secretary for Transport and the chief Government Law Adviser. On the same day a meeting of the National Transport Commission was held, attended by three members of the Commission, and at this meeting a decision was taken to direct the first respondent to refer the application to the Commission for consideration and decision in terms of s 7 (2) of Act 74 of 1977. Applicant was notified of this decision on 25 October 1979 and that the hearing by the Commission would take place on 14 November 1979. This hearing was, however, postponed on notice to 5 December 1979. Applicant B however, on 28 November 1979 applied (a) to have the decision of the first respondent to have the meeting referred to the Commission reviewed, corrected and/or set aside; (b) to have the decision of the Commission taken at Pretoria set aside and for other ancillary relief. The applicant contended (1) that what had occurred on 23 October at the meeting of the ad hoc Board was sub judice and that it was improper for third respondent C to have prevailed upon the Commission to act in terms of s 7 (2) of the Act without giving applicant and other objectors notice so as to afford them an opportunity of taking such steps as they might be advised; (2) that the Commission was not entitled to reach the decision it did without affording applicant an opportunity of being heard in regard thereto; (3) that the meeting of the Commission did not constitute a meeting in terms of Act 44 of 1948 as notice had not been given to all the members and, therefore, any decision arrived at was invalid; (4) that the meeting was D not held in public; and (5) that the meeting had not properly considered the matter and consequently no decision had been lawfully arrived at.

Held, as to (1), that the postponement of 23 October did not serve to freeze the situation in the sense that none of the parties was entitled to do anything which would have the result of stultifying the contemplated proceedings.

Held, further, as to (2), that, in terms of Act 44 of 1948 and Act 74 of 1977, the Commission was not exercising a quasi- judicial function but purely an administrative function: accordingly the audi alteram partem rule did not apply.

Held, further, assuming that there was a duty on the Commission to act fairly in arriving at a decision in terms of s 7 (2) of Act 74 of 1977, that on the facts it had not been shown that the Commission had not acted fairly in arriving at a decision in terms of s 7 (2).

Held, further, as to (3), as the two members of the Commission who were entitled to attend the meeting but were not given notice of it were out of reach as far as the particular meeting was concerned, that the meeting of the Commission was not invalidated and the resolution passed at the meeting by those present, who constituted a quorum, was validly passed.

Held, further, as to (4), as the meeting was purely for administrative purposes, that there was no need for it to be held in public.

Held, further, as to (5), that on the facts there was no reason for the finding that the meeting had not given proper consideration to the matter before it.

Held, further, that the referral by the first respondent to the second respondent was, in terms of the Act, inevitable.

Held, further, that no prejudice had been caused to the applicant by such referral. Application accordingly dismissed. H

Case Information

Application to have a decision of the first respondent to refer an application for an increase in bus fare tariffs to the second respondent, the National Transportation Commission, set aside and for ancillary relief. Facts not material to this report have been omitted from the reasons for judgment.

L R Dison SC (with him J G Foxcroft) for the applicant.

H C Nel (with him G D van Schalkwyk) for the first and second respondents.

H Snitcher QC (with him I G Farlam) for the third respondent.

1980 (2) SA p483

Cur adv vult.

Postea (January 14).

Judgment

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...