IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) CASE NO.: 536/04 In the matter between: TSHWAING UNITED TAXI ASSOCIATION 1st APPLICANT BOPHIRIMA LONG DISTANCE TAXI ASSOCIATION 2ndAPPLICANT AND THE MEMBER OF THE EXECUTIVE COMMITTEE FOR TRANSPORT AND PUBLIC WORKS NORTH WEST PROVINCIAL GOVERNMENT 1st RESPONDENT LESELE KOMANE TRADING AS MANTELLA TRANSPORT SERVICES 2ndRESPONDENT MMABATHO MOKGOATLHENG AJ: JUDGMENT MOKGOATLHENG AJ: 1 Introduction [1] This is an application in terms of Rule 6(2) wherein the Applicants sought an order in the following terms: 1. That the first Respondent be ordered to remove the operation of the tender bus from the routes in which the Applicant's members are operating their taxi-type transport which routes are Mafikeng/Kraaipan/Khunuana and Delareyville. 2. That the order in prayer two(2) above operate as an interim order pending the finalisation of the review application to be instituted by the Applicant within twenty (20) court days of the granting of this order. 3. That the first Respondent pays the cost of the application. 4. That the second Respondent pays the cost of the application jointly and severally with the first Respondent in the event that the second Respondent opposes the relief sought. Background Facts [2] The Applicants are Taxi Associations as determined by regulations promulgated in terms of section 7A(19) of the Road and Transportation Act 74 of 1977. [3] The Applicant's members ferry and transport passengers between Delareyville its environs and Mafikeng. The Applicants allege that their members have conducted their business operations unhindered on these routes for a considerable period of time without competition. 2 [3] During December 2003, the Applicant's members became aware that the second Respondent was conducting a bus service on the Delareyville environs and Mafikeng. The second Respondent was conducting the bus service without the relevant permit issued by the North West Province Department of Transport. [4] The Applicants convened a meeting on 4 December 2003 which was attended by the first and second Respondents. At this meeting, the second Respondent explained that he had a contract with the North West Department of Transport to ferry school children within the confines of the routes plied by the Applicants. [5] It transpired that the second Respondent was authorised to conduct this service through a letter issued by the first Respondent. The Applicant's contend that the second Respondent during school holidays operated its bus service on the routes allocated to the Applicants. [6] The Applicants resolved that the second Respondent should forthwith stop operating its bus service. The Applicants had investigated the status of the second Respondent and the circumstances leading to it operating on the same routes as the Applicants members. [7] The Applicants discovered that: (a) the second Respondent was awarded a tender by the North West Tender Board to transport ªfarm children 3 for the rural access pilot projectº Department of Transport North West Province. (b) the second Respondent was issued with a temporary permit to operate a bus service on the same routes as the Applicant's members. (c) the second Respondent had leased a bus from Mmabatho Bus Service to conduct his operations. [8] The Applicants advised the first Respondent that he had unprocedurally issued a permit to the second Respondent, that the second Respondent should forthwith stop operating on the same routes as the Applicant's members; that the Applicant's members were being prejudiced by the second Respondent's conduct. [9] The Department of Transport North West on 10 February 2004 advised the Applicants that the body charged with the issuing of permits or operating licenses to conduct bus or taxi transport services is; The Operating Licensing Board The Secretary of the Board (Ms Dineo Ditlhareng) P/Bag x2080 MMABATHO 2735 TEL NO.: 018 387 4754 FAX NO.: 018 387 4759. [10] The Applicants subsequently discovered through a newspaper report, that the second Respondent financed by 4 Standard Bank purchased two buses to convey school children to and from Vryburg and Mafikeng and to also convey commuters on the same routes operated by the Applicant's members. The Applicants contend that tender 17W101/03 was published by the Department of Transport North West. The terms of the tender did not invite the public to tender to convey commuters on the areas of Mafikeng, Kraaipan and Khunuana routes. The Applicants are against the second Respondent conveying working commuters on routes allocated to the Applicant's members. Reasons for Urgency [11] (a) The Applicant's members rights are being infringed. (b) The Applicant's members motor vehicles are not operating. (c) The Applicant's members have no work, their livelihood is at stake. (d) The Applicant's members have no other source of income. (e) The Applicant's members cannot recommence their taxi operations on the same routes without a court order. (f) If this application is heard in the normal course the effect on the Applicant's members businesses would be devastating. The Applicant's members would have to shut down their business operations for at least two months. (g) The Respondents would not be prejudiced if an order is 5 granted, the Respondents prejudice is negligible as compared to the Applicants if the order is not granted. Reasons for Application [12] The Applicant's members are duly authorised to operate the routes which the Department of Transport has decided to allocate to the second Respondent. The second Respondent's bus which operates in the Mafikeng/Kraaipan/Khunoana route is competing unfairly with Applicant's members as the second Respondent is able to charge lower tariffs as it is subsidised by the Department of Transport. [13] The decision taken by the Department of Transport, that is to issue a permit to the second Respondent to operate on the same routes as the Applicants' members has incited the community to attack Applicants' members. The North West Department of Transport decision was not made judiciously after considering its legal implications, which are the following:- a) The rights of the taxi industry are impaired; b) The Applicants' members pays taxes; c) Promotes the element of conflict between the community and the Applicants' members; 6 d) The Applicants' members business will shut down and the members will not be able to maintain their families. e) The Applicants' members employees will lose their jobs and this will add to the unemployment rate in the province; and f) The involvement of chiefs in the matter means chiefs are, now involved in the administration of the province. The Second Respondent's Case [14] The second Respondent is the sole member of Mantella Trading 624CC a close corporation duly incorporation in terms of the Close Corporation Act no. 69 of 1984 with registration number 2003/057442/23 with its registered business address at 71 Scholtz Street, Lichtenburg, North West. [15] On 11 August 2003 the North West Tender Board invited tenders under tender no NW 101/03 for the transportation of farm school children for the rural access pilot project of the Department of Transport North West. The second Respondent submitted a tender in response to the invitation to the abovementioned tender. The second Respondent was awarded the tender authorising the second Respondent to operate on the route 5 between Vryburg and Mafikeng and to operate three busses thereon. [16] The tender in respect of route 5 is awarded for a period of (5) five years and relates to transportation of school children. The tender in respect of route 8 relates to the route between Khunuoane/Kraaipan/Mafikeng in respect of three buses and for a period of (5) five years commencing form December 7 2003 and related to public transport for the rural access project of the Department of Transport. [17] The second Respondent after being awarded the tender applied for finance with Stannic, Absa and Peoples Bank in order to purchase buses. Whilst the applications for finance were pending the second Respondent leased a bus from Aldo Coaches at the rate of R24 000.00 per month and also applied for a road carrier permit from the Department of Transport. This permit was issued on 4 December 2003. On 3 December 2003 a certain B Machauisa a member of one of the Applicants supported by other Applicant members prevented the second Respondent's bus from operating on route 8. The bus was confiscated. On 4 December 2003 the second Respondent attended a meeting attended by the Applicants, the Department of Transport, SAP Services and the Traffic Department regarding the issue that the second Respondent was operating on route 5 and 8 without a valid permit. The meeting resolved that the second Respondent should obtain the requisite road carrier permit. The second Respondent on 4 December 2003 was issued with the relevant permit, the second Respondent's bus was released by the Traffic Department, and the second Respondent resumed operating. 8 [18] On 11 December 2003 B Machuisa and his supporters unlawfully prevented the second Respondent from operating on route 8. Members of the local community threatened to prevent the Applicant's members from operating their taxi businesses should they further prevent the second Respondent from conducting his operations peacefully on route 8. [19] The community benefits from the second Respondent's operation in that the tariff charged in respect of transportation from Kraaipan/Khunuoana/Mafikeng is less than what is charged by the Applicants' members. The second Respondent in January 2004 leased a bus from the North West Star (Pty) on a monthly rental of R11 665.00 in respect of route 8. On 11 March 2004 the second Respondent took delivery of three Scania F94 buses valued at 2.8 million Rand, financed by Standard Bank.