THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 490/2016

In the matter between:

POLOKWANE LOCAL & LONG
DISTANCE TAXI ASSOCIATION
APPELLANT

and

LIMPOPO PERMISSIONS BOARD
FIRST RESPONDENT

THE PROVINCIAL TAXI REGISTRAR,
LIMPOPO PROVINCE
SECOND RESPONDENT

MEC: DEPARTMENT OF ROADS
AND TRANSPORT, LIMPOPO PROVINCE
THIRD RESPONDENT

RSA TAXI ASSOCIATION
FOURTH RESPONDENT

Neutral citation:
Polokwane Taxi Association v Limpopo Permissions Board and
others (490/2016) ZASCA 44 (30 March 2017)

Coram:

Maya AP and Willis, Mbha and Mocumie JJA and Fourie AJA

Heard:

23 February 2017

Delivered:

30 March 2017

Summary:
Court Practice: locus standi: whether appellant could bring the application:
whether appellant had direct and substantial interest in the subject matter.

____________________________________________________________________

ORDER
____________________________________________________________________

On appeal from: Gauteng Division of the High Court, Pretoria (Mavundla J, Pretorius
and Phatudi JJ sitting as court of appeal):

1. The appeal is upheld with costs, including the costs consequent upon the
employment of two counsel, where employed.
2. The order of the full court is set aside and substituted with the following order:
‗(a) The appeal is upheld with costs
(b) The order of the court a quo is substituted with the following order –
i)
The applicant has the necessary locus standi in iudicio to institute the
application.
ii)
The point in limine is dismissed with costs.
(c) The application is referred back to the court a quo for consideration of its merits.‘

______________________________________________________________________

JUDGMENT
______________________________________________________________________

Mbha JA (Maya AP and Willis, Mbha, Mocumie JJA and Fourie AJA concurring):

[1] This appeal is against the judgment of the full court of the Gauteng Division of
the High Court, Pretoria (Mavundla J with Pretorius and Phatudi JJ concurring) made on

29 January 2016, upholding the finding of the high court of the same division (AA Louw
J), that the appellant lacked the necessary locus standi to have instituted the application
proceedings in question. Special leave to appeal to this court against the
aforementioned judgment and order of the full court was granted by this court on 3 May
2016.

[2] During 2012 the appellant, a taxi association duly registered in terms of the
Limpopo Interim Passenger Transport Act, 4 of 1999 (the Act), instituted urgent
application proceedings in the high court. The appellant sought certain interim relief
pending review, and the setting aside of a ruling made by the first respondent, the
Limpopo Permissions Board (the Board), on 2 March 2012. In terms of this ruling, which
was conveyed to the appellant on 2 April 2012, the appellant‘s members who are taxi
owners and operators, who wished to operate on the route from Polokwane to
Johannesburg and return, could do so only if they became members of the fourth
respondent, the RSA Taxi Association, a taxi association registered in terms of the Act.

[3] The appellants sought to review and set aside the above ruling on the basis that
it compelled the appellant‘s members to join the fourth respondent, should they wish to
operate the aforesaid route, in violation of the appellant‘s members‘ right to freedom of
association which is guaranteed in s 18 of the Constitution of the Republic of South
Africa, 1996 (the Constitution).

[4] The application proceeded as an opposed matter. The high court, having raised
the issue of the appellant‘s standing mero motu, dismissed the application after finding
that the appellant failed to make out a case for the relief it sought because it lacked the
necessary standing. In arriving at this conclusion, the high court reasoned that as an
operating licence is a personal right which is issued to a specified person and in respect
of a specific vehicle and time, only the owner or operator of an operating licence has an
inalienable direct and substantial personal legal interest in any issue or dispute arising
from that operating licence. Accordingly, it is such owner or operator only who can
enforce the rights conferred by such licence.

[5] The high court then concluded that the appellant, a universitas, which is a
separate legal entity, could not enforce the rights of its members which they possess by
reason of their membership to the association, and did not institute the proceedings to
protect or enforce an interest which it had as an association. Instead, it had sought
rather to protect or enforce rights acquired and held by its members in their personal
capacities. The high court also held that all of the appellant‘s members mentioned in the
annexure to the founding affidavit should have been cited as applicants and, not only be
required to individually prove their operating licences, but also fully set out why relief in
respect of their specific licences should be granted.

[6] Unhappy with the outcome the appellant appealed, with leave of the high court,
to the full court. The sole issue for determination by the full court was whether the
appellant had locus standi to litigate on behalf of its members in circumstances where

the individual members have not in their individual capacity instituted the action nor filed
verifying affidavits.

[7] In determining the appeal, the full court agreed with the high court that the
appellant, being a universitas, was a legal entity capable of suing and being sued in its
own name, and possessed rights independent of its members. It also held that in order
to bring the application on behalf of its members, the appellant had to show that it had a
direct and substantial interest in the outcome of the proceedings. In other words, what
was required was that it had a legal interest in the subject matter of the action which
would be prejudicially affected by the judgment.

[8] The full court relied on the matter of Ex-TRTC United Workers Front & others v
Premier, Eastern Cape Province1, to find that the appellant lacked a direct and
substantial interest in the subject matter Van Zyl J stated that:
‗The second consideration … is whether there exists a sufficient nexus between the individual
members in their capacities as members of the association, and the right that forms the subject
matter of the litigation. Applied to the present matter, the first plaintiff did not, in my view institute
these proceedings to protect or enforce an interest which it had as a body or organisation.
Stated otherwise, it does not propose to enforce the rights of its members which they possess
by reason of their membership of the association. As stated earlier, the right to claim damages
from the defendant for the alleged breach of contract is a personal right that vests in each one
of the members of the association individually. The right which they pursue in these proceedings

1 Ex-TRTC United Workers Front & others v Premier, Eastern Cape Province 2010 (2) SA 114 (ECB)
para 25.

therefore exists independently of their membership of the first plaintiff… It did not arise by virtue
of their membership of the first plaintiff.‘

[9] The full court went on to find that the appellant did not institute the proceedings
with a view to assert or protect an interest which vested in it as an association.
Furthermore, the full court held that the granting of a licence to an individual was not
dependent on his membership to the appellant and, as the latter had not alleged any
right in respect of the licences of its members, it could not assert any such right to any
particular route in its individual capacity nor could it do so on behalf of its members.

[10] In relation to s 38(e) of the Constitution, the full court held that a party seeking to
rely on this section had the onus of persuading the court that it possessed such a right
and must make specific averments, buttressed with facts, that this right was threatened
and required protection. However, in this matter the appellant did not acquit itself  of the
onus resting on it to show that the rights of its members were so intertwined with its
rights and that as such, that it had a legal interest in bringing these proceedings and
possessed the standing to do so.

[11] Although it is so that this appeal concerns only the rulings and findings in respect
of the judicial review, in which both the high court and the full court agreed that the
appellant was not possessed of standing, before us the fourth respondent attempted,
however, to raise a preliminary point in limine namely, that the appeal is moot. This
point was raised on the basis that since the appellant does not appeal the second
ground upon which the high court dismissed the review application, namely that the

relief sought was vague, the dismissal of the review must in fact stand even if this court
were to uphold the appeal on the issue of locus standi.

[12] This point which the fourth respondent‘s counsel, quite correctly, did not pursue
with much vigour is clearly misconceived and cannot succeed. First, a simple reading of
Louw J‘s judgment reveals that no such order was in fact made. Furthermore, reference
to any vague, relief was clearly no more than a remark made in passing. Secondly, both
the high court and the full court clearly discerned that the only issue for determination
related to the appellant‘s standing to institute the proceedings. Likewise, this remains
the single issue for determination in this appeal.

[13] The point of mootness raised fails on another ground. S 16(2)(a)(i) of the
Superior Courts Act 10 of 2013 provides that:
‗When at the hearing of an appeal the issues are of such a nature that the decision sought will
have no practical effect or result, the appeal may be dismissed on this ground alone‘.
It is trite that this court has a discretion which must be exercised according to what
justice requires, deciding issues on appeal even where they no longer present existing
or live controversies.2 A prerequisite for the exercise of this discretion is that any order
which the court may make will have some practical effect on the parties or on others.

2 Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) para [9] – [11];
South African Broadcasting Corporation SOC Ltd & others v Democratic Alliance & others 2016 (2) SA
522 (SCA); Legal Aid South Africa v Magidiwana & others 2015 (6) SA 494 (CC); Minister of Local
Government, Western Cape v Lagoonbay Lifestyle Estate Pty (Ltd) & others 2014 (1) SA 521 (CC).

[14] The full court‘s decision that a duly registered taxi association in the appellant‘s
position, lacks standing to bring proceedings on behalf of its members holds potentially
prejudicial future repercussions for the entire taxi industry as a whole, should the import
of the decision remain unchallenged.

[15] The question whether or not the appellant was possessed of standing to institute
the proceedings must first be determined with reference to the specific relief it had
sought. The relevant paragraphs of the Notice of Motion read as follows:
‗5. That the decision of first respondent to force those members of applicant who are entitled to
travel on the route from Polokwane to Johannesburg and return, to become members of the
fourth respondent prior to being entitled to operate such mini-bus taxi service, is declared to be
invalid and set aside;
6. That the first respondent is ordered to issue to applicant an amended route registration to
include to route from Polokwane to Johannesburg and return;
7. That the first respondent is ordered to issue licences to applicant‘s members who have
previously operated a mini-bus taxi service on the route from Polokwane to Johannesburg and
return, to include the route in its operating licences, without having to register with the fourth
respondent as members;
8. Alternatively to prayers 6 and 7, that the decision that applicant‘s members who have
previously operated a mini-bus service on the route from Polokwane to Johannesburg and
return, have to join the fourth respondent as members, before being able to do so in future, be
referred back for reconsideration with the instruction that the first respondent may not impose a
condition to force members of applicant to join fourth respondent, prior to operating a mini-bus
taxi service.‘

[16] As has been mentioned earlier, it is not disputed that the appellant is a duly
registered taxi association. Both the high court and the full court found that it is a
universitas with legal standing distinct from its members, and with the capacity to sue
and be sued in its own name. This categorisation of the appellant was not challenged by
any of the parties. It is also common cause that one of the Board‘s functions is to
register a taxi association to a specific allocated route through a register referred to as
―RAS‖ (Route Allocation System).

[17] In light of the aforegoing, it is clear that the full court did not give weight to the full
import of the relief sought in paragraph 6 of the Notice of Motion, in which the appellant
sought an order compelling the first respondent to register and allocate to appellant an
amended route from Polokwane to Johannesburg. This is self-standing relief that was
sought by the appellant in its own right without any reference whatsoever to its
members.

[18] Clearly, the appellant has a direct and substantial interest in the outcome of the
relief sought in this paragraph, which accords fully with the reasoning in the matter of
AAIL (SA) v Muslim Judicial Council,3 where Tebbutt J explained the concept of a direct
and substantial interest in a matter, in the following terms:
‗It is clear that in our law a person who sues must have an interest in the subject-matter of the
suit and that such interest must be a direct one (see Dalyrymple & Others v  H Colonial

3 Ahmadiyya Anjuman Ishaati-Islam Lahore (South Africa) & another  (SA) v Muslim Judicial Council
(Cape) and others 1983 (4) 855 (C) at 863H-864A.

Treasurer 1910 TS 372). In P E Bosman Transport Works Committee & Others v Piet Bosman
Transport (Pty) Ltd 1980 (4) SA 801 (T) at 804B, ELOFF J states that:
"It is well settled that, in order to justify its participation in a suit such as the present, a party... has to
show that it has a direct and substantial interest in the subject-matter and outcome of the application‖.
The learned Judge cited with approval the view expressed in Henri Viljoen (Pty) Ltd v
Awerbuch Brothers 1953 (2) SA 151 (O), approved by CORBETT J in United Watch &
Diamond Co (Pty) Ltd & Others v Disa Hotels Ltd & Another 1972 (4) SA 409 (C), that
the concept of a "direct and substantial interest" connoted "an interest in the right which is the
subject-matter of the litigation". Corbett J went on to say at 415H:
‗This view of what constitutes a direct and substantial interest has been referred to and adopted in a
number of subsequent decisions, including two in this Division... and it is generally accepted that what is
required is a legal interest in the subject-matter of the action which would be prejudicially affected by the
judgment of the Court‘.

[19] Regard being had to the content of paragraph 6 in the Notice of Motion, it cannot
be disputed that the appellant has a direct and substantial interest in the order it seeks
in terms of this paragraph. In other words, the appellant had the right to institute the
proceedings. On this ground alone, this appeal ought to succeed.

[20] With regard to the relief the appellant sought on behalf of its members as
contained in paragraphs 5, 7 and 8 of the Notice of Motion, it is significant that the
appellant‘s averment in the founding affidavit, that it was duly authorised to institute the
proceedings on behalf of its members by virtue of a special power attorney duly signed
by the members and attached thereto, was neither challenged nor disputed. The full
court ignored this important fact and did not pronounce itself in any way on the

significance of such authorisation. This authorisation cried out for attention by the full
court. Clearly, this authorisation vested the appellant with the necessary standing to
institute the proceedings on behalf of its members.

[21] The full court‘s finding that the appellant lacked locus standi on the basis that the
granting of a licence to an individual was not dependent on his membership of the
appellant, and that the right to a particular route arose from the allocation of that licence,
is wrong on two fronts. First, in terms of s 39(11) of the Act ‗[n]o permission may be
granted unless the applicant is a member of an association that has been registered by
the Registrar under s 29 and the application is supported in writing by the association,
or the Registrar certifies in writing that the applicant qualifies as a registered non-
members under that section and has applied for registration as such‘. To this extent the
issuing of a taxi licence is dependent on membership of an association. Secondly, the
appellant in its application for judicial review, relies upon the fact that this is a decision
that affects its members. The focus of the enquiry by the full court should therefore have
been the standing of the appellant and should not have been on ancillary issues.

[22] The full court overlooked the fact that the relief relating to the setting aside of the
Board‘s decision compelling the appellant‘s members to join and belong to the fourth
respondent if they wished to operate on the aforementioned route, was predicated on
an alleged infringement of the appellant‘s members‘ right to freedom of association as
contained in the Bill of Rights. This right, contained in s 18 of the Constitution, provides
that everyone has the right to freedom of association and the founding affidavit makes

specific allegations and references to the first respondent‘s actions thwarting the
appellant‘s members‘ rights to freedom of association.

[23] The full court further erroneously failed to recognise that the appellant was, in
terms of s 38(e)4 of the Constitution, within its rights to approach a competent court as
an association acting in the interest of its members, alleging that their constitutionality
guaranteed right to freedom of association has been infringed or threatened. In terms of
these provisions an association acting in the interest of its members has the right to
approach a competent court, alleging that a right in the Bill of Rights has been infringed
or threatened, and the court may then grant appropriate relief.

[24] The relief of review sought by the appellant to set aside the impugned decision
which prejudicially affects the rights of its members falls squarely within the ambit of s
38(e). Accordingly, the appellant had the necessary standing to have instituted the
proceedings on behalf of its members to protect their constitutional rights.

[25] The full court misdirected itself by ignoring the import of s 38(e) of the
Constitution which refers specifically to cases in which a right in the Bill of Rights is
infringed or threatened. It instead relied on the matter of Ex-TRTC United Workers Front

4 Section 38(e) of the Constitution provides:
‗Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of
Rights has been infringed or threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach a court are—
…
…
…
…
(e) an association acting in the interest of its members.‘

v Premier, E Cape by requiring that the appellant show that it has a direct and
substantial interest in the outcome of the proceedings to wit, a legal interest in the
subject matter of the application that would be prejudicially affected by the judgment. In
my view, Ex-TRTC United Workers Front v Premier, E Cape is distinguishable. The full
court did not consider the full import of s 38(e) of the Constitution as a mechanism
conferring statutory standing on an association similar to the appellant, acting on behalf
of its members. Moreover, the Constitutional Court has cautioned against the adoption
of a narrow approach to the issue of standing in constitutional cases. In Ferreira v Levin
NO & others,5  Chaskalson P explained as follows in relation to s 7(4)(b) of the interim
Constitution (the precursor to s 38):
‗whilst it is important that this court… should devote its scarce resources to issues that are
properly before it, I can see no good reason for adopting a narrow approach to the issue of
standing in constitutional cases. On the contrary, it is my view that we should rather adopt a
broad approach to standing‘.
The courts are impelled to adopt a broad and liberal approach to standing when
interpreting s 38(e) of the Constitution.

[26] The full court adopted too restricted an approach in determining standing. The
appeal must therefore succeed. As the merits of the review remains extant, it follows
that this matter must be referred back to the high court for finalisation. It is not
necessary to consider the alternative ground of appeal namely, whether the appellant
could rely on the provisions of s 38 of the Constitution in asserting for judicial review
under PAJA.

5 Ferreira v Levin No & others; Vryenhoek & others v Powell NO & others 1996 (1) SA 984 (CC).

[27] I accordingly make the following order:
‗1. The appeal is upheld with costs, including the costs consequent upon the
employment of two counsel, where employed.
2. The order of the full court is set aside and substituted with the following order:
‗(a) The appeal is upheld with costs.
(b) The order of the court a quo is substituted with the following order –
(i) The applicant has the necessary locus standi in iudicio to have instituted the
application.
(ii) The point in limine is dismissed with costs.
(c) The application is referred back to the court a quo for consideration of its merits.‘

________________
B H Mbha
Judge of Appeal

APPEARANCES:

For Appellant:

S G Gouws (with him L W De Beer)
Instructed by:

De Bruin Oberholzer Attorneys, Polokwane

c/o Symington & De Kok, Bloemfontein

For Respondents:

R Bedhesi (with him A Lapan)
Instructed by:

Bhika Inc, Johannesburg

c/o Webbers Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM :

The Registrar, Supreme Court of Appeal

DATE

30 March 2017

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Polokwane Taxi Association v Limpopo Permissions Board (490/2016) [2017] ZASCA 44 (30
March 2017)

MEDIA STATEMENT

The Supreme Court of Appeal (SCA) today upheld an appeal against a judgment by the full court of
the Gauteng Division of the High Court, Pretoria in terms of which it was found that the appellant
lacked the necessary standing to have instituted application proceedings.

The issue at the heart of this appeal pertained to the question whether the appellant, a legal entity
capable of suing and being sued in its own name, could show that the rights of its members were
intertwined with its own and that as a result, it had a legal interest in bring the application and
possessed the standing to do litigate on behalf of its members. Moreover,

The Supreme Court of Appeal held that the full court’s decision that a duly registered taxi association
in the appellant’s position lacked the requisite standing to bring proceedings on behalf of its members
had potentially prejudicial future repercussions for the taxi industry as a whole. Moreover, the SCA
noted that the full court had overlooked the full import of the relief sought by the appellant which had
the effect that it indeed established a clear direct and substantial interest in the constitutional rights
and interests of its members and that such interest clothed the appellant with the necessary standing
to institute the proceedings on behalf of its members. Consequently, the appeal was upheld.
.
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