South African Railways and Harbours v Chairman, Bophuthatswana Central Road Transportation Board and Another; South African Transport Services v Chairman, Bophuthatswana Central Road Transportation Board and Another

• Jurisdiction: South Africa
• Judge: Steenkamp J
• Judgment Date: 09 December 1981
• Citation: 1982 (3) SA 24 (B)
• Hearing Date: 16 November 1981
• Court: Bophuthatswana Supreme Court

Steenkamp J:

D The applicants in both applications have applied to this Court to set aside certain decisions of the second respondent in which the latter granted certain motor carrier certificates to a company known as Rent-a-Bakkie Holdings (Pty) Ltd (hereinafter referred to as the company).

E Although it is conceded by the applicants in both applications that the company has a material and substantial interest in these matters, the company was not joined as a party to the proceedings. It is admitted by the applicants that in normal circumstances the company should have been joined as a party but in this case it was not possible to do so for the following reasons set out in the affidavit: F

'18.1

Normally Rent-a-Bakkie would have been joined as respondent as it has a direct and substantial interest in the permits granted by the second respondent. As Rent-a-Bakkie is a peregrinus in Bophuthatswana, the only way in which it could be so joined would have been:

18.1.1

after this Court had ordered an attachment of property of Rent-a-Bakkie either ad confirmandam jurisdictionem or ad fundandam jurisdictionem; or

18.1.2

G if Rent-a-Bakkie had consented to the jurisdiction of this honourable Court, which it is submitted could have been done as the applicant is an incola of the Republic of Bophuthatswana.

18.2

Despite extensive investigations under the control of the said Benjamin Potgieter no assets belonging to Rent-a-Bakkie could be discovered in the Republic of Bophuthatswana. Although it is H anticipated that one or more of the vehicles mentioned in its applications to the second respondent would be either in or in transit through the Republic of Bophuthatswana in future, it is impossible to determine when and where it will be. Furthermore it would be impossible to make an application to found jurisdiction because of the probability that the vehicle or vehicles would be back in the Republic of South Africa before the papers could even be prepared.'

The attorneys of the applicants however approached the attorneys of the company in order to seek the consent of the latter to the jurisdiction

Steenkamp J

of this Court. The attorneys of the company indicated that they had no instructions from the company to accede to the request of the A applicants. The applications, together with all the annexures, were, however, ex abundanti cautela served on the company.

When the matters were called I directed that the question of nonjoinder of the company should be argued first because this must be determined before the merits of the applications are considered. See L F Boshoff B Investments (Pty) Ltd v Cape Town Municipality; Cape Town Municipality v L F Boshoff Investments (Pty) Ltd 1969 (2) SA 256 (C) at 256.

Mr Coetzee in a well prepared and able argument submitted that, although it is conceded that the company has a direct and substantial interest in C the motor carrier certificates granted by the second respondent, there was no way to serve the applications on the company because the company is a peregrinus in the area of jurisdiction of this Court and could only be joined as a party if the company has consented to jurisdiction or this Court has ordered an attachment of property of the company ad confirmandam or ad fundandam. It was further contended that D despite extensive investigations no assets belonging to the company could be discovered in this country. It was also pointed out that the attitude of the company's attorneys should be construed as a refusal to consent to jurisdiction of this Court. This Court was invited to follow the decision of Leibowitz and Others v Schwartz and Others 1974 (2) SA 661 (T) E at 662. It was submitted that this Court has no jurisdiction over the company and is not empowered, therefore, to grant leave that the applications be served on the company by way of edictal citation.

Mr Coetzee did not convince me that the company should not be joined as a party and that the applications should not be served by way of edictal F citation. On the contrary, I was convinced that the company should be joined as a third respondent and that I should grant leave to the applicants to serve the applications by way of edictal citation.

It was, therefore, inter alia ordered that the company be joined as a third respondent and that this order be served by way of edictal G citation on the company's attorneys who indicated their address as the place for service. I indicated that reasons would be furnished at a later stage.

The principle audi et alteram partem is fundamental in our law and should always be observed. In MacFie v Union Government 1924 AD 77 at 81 it was said:

In accordance with the principles of natural justice he must give the H member, the cancellation of whose appointment is under consideration, an opportunity of being heard. He must bring his mind to bear upon the case and carefully consider the pros and cons of the matter.'

In the case of Administrateur van Suidwes-Afrika en 'n Ander v Pieters 1973 (1) SA 850 (A) BOTHA JA said at 860 the following:

''n Duidlike omskrywing van die presiese perke waarbinne die audi alteram partem- reël, by ontstentenis van uitdruklike of duidelike uitsluiting daarvan, toegepas moet word, ontbreek in ons regspraak. (Laubscher v Native Commissioner, Piet Retief 1958 (1) SA 546 (A) te 549.)

Dit is egter algemeen gesproke duidelik dat waar 'n openbare liggaam of gesag

Steenkamp J

statutêr gemagtig word om 'n beslissing te gee wat die goed, vryhede of bestaande regte van 'n ander nadelig kan raak, of waar die beslissing bestaande regte kan aantas of regsgevolge vir andere mag inhou, daardie ander persoon of persone die reg het, tensy die teendeel uit die A magtigende bepaling blyk, om toegelaat te word om sy saak te stel voordat daar so 'n beslissing teen hom geneem word.'

See also Laubscher v Native...