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: Hiemstra CJ
• Judgment Date: 15 March 1982
• Citation: 1982 (3) SA 629 (B)
• Hearing Date: 08 March 1982
• Court: Bophuthatswana Supreme Court

Hiemstra CJ:

These two applications, brought under Rule 53 of the Supreme Court Rules, turn on the same issues but arise from two batches A of cases dealt with by the Central Road Transportation Board. The applicant was aggrieved at the granting by the board of a set of permits to a third party during July 1981. The papers were prepared and served, and thereafter another session of the board took place, at which to the same third party a further set of permits was granted at which the B present applicant is similarly aggrieved. The applicant in the first application is the South African Railways and Harbours. Subsequent to the first application it changed its name to South African Transport Services, but it is still the same person in law. Whether a complete duplication of a full set of affidavits was necessary, will be discussed when I come to deal with costs.

C The third party here concerned is a firm called Rent-a-Bakkie Holdings (Pty) Ltd.

Whereas the present applicant is an incola of Bophuthatswana, Rent-a-Bakkie is a peregrinus, and despite diligent search no assets of Rent-a-Bakkie could be found within the country capable of attachment ad D fundandam iurisdictionem. They were requested to submit to the jurisdiction of this Court, but refused to do so. The applicant, ex abundanti cautela, nevertheless served these papers upon them. There was no other way of bringing them under the jurisdiction of this Court.

This case was heard by my Brother STEENKAMP on 23 November 1981 [*] and he E ordered that Rent-a-Bakkie be joined as a third respondent. The order was served on them, but otherwise nothing was done on either side. I take the view that where no order ad factum praestandum is sought, and also no order sounding in money, a third party whose interests are at stake but refuses to consent to jurisdiction has only itself to blame F if, with full knowledge of the proceedings, it neglects to intervene. Its failure to do so is no bar to the hearing of the application.

The application is brought on two bases. Firstly it was contended that the board had misconstrued its powers under the Bophuthatswana Motor Carrier Transportation Act 14 of 1978 and in consequence had acted G beyond its powers. The following statement of the law by COLMAN J in Agricultural Supply Association (Pty) Ltd v Minister of Agriculture 1970 (4) SA 65 (T) at 70 - 71 governs this situation:

'In setting it aside I am not usurping a discretion vested by statute in the Minister. I am acting on the well-established principle that the Court can and...