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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case No: 27733/2014

Date: 23 September 2014

Not reportable

Not of interest to other judges

In the matter between:

LEBOWAKGOMO TAXI ASSOCIATION.............................................................................Applicant

and

UNITED MPHAHLELE TAXI ASSOCIATION.........................................................First Respondent

PIETERSBURG BURGERSFOR TAXI ASSOCIATION.....................................Second Respondent

MEC, SAFETY, SECURITY AND LIAISON........................................................... Third Respondent

JUDGMENT

FOURIE, J

[1.] This is the return day of a rule nisi which was granted ex parte against the respondents.  In terms of this order the respondents are called upon to show cause why members of the first and second respondents should not be interdicted:  from threatening, assaulting, intimidating or harassing the members of the applicant or from damaging their vehicles or property;  interfering with the lawful taxi operations of the members of the applicant;  and to uphold the law of the land in accordance with the constitutional mandate of the South African Police Service.  After service of this order the first and second respondents filed answering affidavits opposing confirmation of the rule nisi.

BACKGROUND

[2.] The issue revolves mainly around the applicant’s member’s operation on the Pondungwane route and the alleged refusal by the members of the first and second respondents to recognise the rights of the applicant pursuant to the operating licenses issued to its members.

[3.] The applicant contends that on 14 March 2014 drivers of the first and second respondents started stopping vehicles of the applicant demanding that passengers on board leave their vehicles and confiscated monies paid by these passengers.  Members of the South African Police Service then scheduled a meeting between the parties on 19 March 2014.  During this meeting the applicant informed the role-players that the applicant’s members would recommence with operations on the designated route as from 1 April 2014.  It further contends that on this date when its members resumed their operations, violence perpetrated by members and drivers of the first and second respondents escalated when a group of individuals of the first and second respondents started stoning members of the applicant.

[4.] It is denied by the respondents that the violence in relation to the operation of this particular route was as a consequence of any unlawful acts on the part of the respondents’ members or their drivers. It is alleged by the first respondent that it is members of the applicant who have caused altercations and unrest and who have victimised members of the first respondent.  It is further alleged by the first respondent that members of the applicant adopted the attitude that “as they had permits also for that route, the passengers were theirs”. It is also alleged that vehicles belonging to members of the first respondent were stoned by members of the applicant, as a consequence of which members of the first respondent tried to defend themselves.

[5.] The deponent on behalf of the second respondent denies any involvement by its members. According to the second respondent its members do not have any interest with regard to the operating licenses which were issued to members of the applicant.  According to the second respondent the unrest and violence occurred between members of the applicant and members of the first respondent and the second respondent has no interest in the dispute between those parties.

DISCUSSION

[6.] It appears to be common cause that violence has ensued between members of the applicant and members of the first respondent.  However, it is quite clear that there are real and substantial disputes of fact between all parties concerned.  In an attempt to overcome this difficulty, counsel for the applicant submitted that the existence of factual disputes on the papers may be resolved by having regard to the inherent probabilities, as measured against the version of the first respondent.  It was also submitted, in the alternative, that the matter should be referred for oral evidence or that the Court should send the parties to trial in the usual way.  It was argued on behalf of the first and second respondents  that the probabilities do not favour the version of the applicant and that a dispute of this nature should have been foreseen by the applicant.  Therefore, it was argued, the application should be dismissed with costs.

[7.] In National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at 290, par 26 Harms DP said the following in this regard:

“Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities.  It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant’s affidavits, which have been admitted by the respondent, together with the facts alleged by the latter, justifies such order.  It may be different if the respondent’s version consists of bald and un-creditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the Court is justified in rejecting them merely on the papers.”

[8.] Having regard to this dictum, it would not only be impossible but also inappropriate to determine probabilities. Civil cases are decided on a balance of probabilities, but where there is a dispute of fact it is rarely possible to do so without subjecting the parties to cross-examination and without allowing them to test what are alleged to be probabilities in the other party’s favour (Freedom Under Law v Acting Chairperson: JSC 2011 (3) SA 549 (SCA) at 564 par 48). That is why motion proceedings are not designed to determine probabilities.

[9.] I am also unable to find, when applying the Plascon-Evans rule, that a final order should be granted. The allegations admitted by the respondents do not justify such an order, as the dispute of fact with regard to who the perpetrators are, remains unresolved.  I am also unable to reject the version of the respondents as un-creditworthy, palpably implausible or far-fetched.  Having regard to these considerations and the nature of the relief sought, i.e. a final interdict, I am unable to find in favour of the applicant.

[10.] With regard to the request that the application should be referred for the hearing of oral evidence, it should be pointed out, as a general rule, that such a request should be made in limine and not when it becomes clear that the applicant is failing to convince a Court on the papers (cf De Reszke v Maras 2006 (1) SA 401 (CPD) at 413F-J).  It was argued by counsel for the first respondent that this matter concerns a dispute of material facts which should have been foreseen by the applicant.  I agree with this submission.

[11.] It was also pointed out that in doing so, the applicant should have applied for an interim interdict pending the institution and finalisation of an action to determine who the perpetrators are.  I agree with this submission also.  Taxi wars are notorious and they often result in violence where the opposing parties put the blame each other. This, no doubt, came as no surprise to the applicant.  Motion proceedings, where final relief is sought, are not designed to resolve these disputes.  I am of the view that, under these circumstances, a final order should not be granted and neither should the matter be referred for oral evidence or to trial.

ORDER:

The rule nisi issued on 8 April 2014 is discharged with costs.

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D S FOURIE

Judge of the High Court

Pretoria

Date: 23 September 2014

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