THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no: 358/04

In the matter between:

MZAMBA TAXI OWNERS’ ASSOCIATION

First Appellant

LUNGELO TOBO

Second Appellant

and

BIZANA TAXI ASSOCIATION

First Respondent

BAMBANANI TAXI ASSOCIATION

Second Respondent

HIBISCUS COAST MUNICIPALITY

Third Respondent

THE MINISTER OF SAFETY & SECURITY

Fourth Respondent

THE KWAZULU-NATAL PROVINCIAL

Fifth Respondent
TAXI REGISTRAR

THE EASTERN CAPE PROVINCIAL

Sixth Respondent
TAXI REGISTRAR

__________________________________________________________________________

Coram:
Harms, Navsa, Mthiyane, Ponnan JJA et Maya AJA

Date of hearing:
25 August 2005

Date of delivery:
9 September 2005

Summary: Administrative law ─ endorsement by provincial taxi registrar of a voluntary
agreement between two taxi associations in terms of which a taxi rank is shared not
subject to review ─ rival taxi association’s rights not infringed ─ right to operate route
by virtue of public permit issued by transportation board ─ such right not conferred by
endorsement.

______________________________________________________________

JUDGMENT
______________________________________________________________

NAVSA JA:

[1] This appeal involves a dispute concerning the use of a taxi
rank in Port Edward within the province of KwaZulu-Natal. It is
directed against a judgment of McLaren J in the Pietermaritzburg
High Court, whereby he dismissed an application by the two
appellants, who had sought to set aside the endorsement
(purportedly made in terms of applicable statutory provisions) by
the fifth and sixth respondents of an agreement (‘the agreement’)
between the Bizana Taxi Association and the Bambanani Taxi
Association (the first and second respondents) to share part of the
taxi rank in question. The present appeal is before us with the
leave of the court below.

[2] The first appellant is a voluntary association (not for gain) of
minibus taxi operators, as are the first and second respondents.
The second appellant is an authorised taxi operator and a member
of the first appellant. The third respondent is the Hibiscus Coast
Municipality within whose area of jurisdiction Port Edward is
situated. The fourth respondent is the Minister of Safety and
Security. The fifth and sixth respondents are the KwaZulu-Natal
Provincial Taxi Registrar and the Eastern Cape Provincial Taxi
Registrar, respectively.

[3] The appellants claim that the endorsement of the agreement,
to which the fifth and sixth respondents appended their signatures
signifying
an
apparent
assent,
was
irregular
and
that
implementation thereof would adversely affect its members, mainly
financially. The present dispute is one of a number of disputes
between the first appellant, on the one side, and the first and
second respondents, on the other. The Umtata High Court, the
Pietermaritzburg High Court, as well as the police have been kept
busy dealing with these disputes. For present purposes, however,
it is not necessary to deal with their other disputes.

[4] For the sake of convenience I shall refer to the first appellant
as Mzamba, the first respondent as BTA, and the second
respondent as Bambanani.

[5] Mzamba has an office at the Port Edward shopping centre
but is based in the Eastern Cape. BTA has its principal place of
business in Bizana in the Eastern Cape. Bambanani, on the other
hand, has its principal place of business at Margate, KwaZulu-
Natal.

[6] The Port Edward taxi rank is a point on a minibus taxi route
between KwaZulu-Natal and the Eastern Cape. The route in

question is the Bizana - Port Edward - Port Shepstone route (the
route). Before the agreement was signed, Mzamba and
Bambanani shared the Port Edward taxi rank, each utilising a
geographical half independently. Mzamba’s members operate the
route and Bambanani’s members do not conduct services beyond
Port Edward into the Eastern Cape.

[7] On 9 December 2002 Mzamba was informed that the third
respondent intended facilitating the signing on 11 December 2002
of an inter-provincial operations agreement by BTA and
Bambanani. Mzamba was informed that the conclusion of the
agreement would entitle BTA to the use of Bambanani’s half of the
Port Edward taxi rank. Such agreements are commonly referred to
in the taxi industry as gapping agreements. Simply put, it is an
agreement in terms of which one taxi association agrees to the use
of its taxi rank facility by members of another taxi association.

[8] Mzamba was neither considered nor invited to be part of any
discussion preceding the conclusion of the agreement. Mzamba
was also not invited to the meeting at which it was envisaged the
signing of the agreement would take place.

[9] On 11 December 2002, Mzamba, through its attorneys,
wrote to the fifth respondent, objecting to the proposed signing of
the agreement, stating that the agreement would result in
encroachment on its entitlement to the use of the Port Edward taxi
rank and that it would in consequence suffer financial prejudice.
Mzamba called for the postponement of the meeting and of the
signing of the agreement.

[10] On the same day Mzamba’s chairperson called at the offices
of the fifth respondent and was assured that no agreement would
be signed. However, on 7 January 2003, Mzamba was informed by
BTA and Bambanani’s attorney that an agreement had in fact been
signed which entitled BTA members to operate from the Port
Edward taxi rank in their travels to and from the Eastern Cape and
on to Port Shepstone.

[11] There were communications between the parties during the
ensuing month but to no avail. BTA members attempted to operate
from the Port Edward taxi rank. Tensions arose and violence
erupted.

[12] On 11 March 2003 Mzamba and the second appellant
sought and obtained an order from the Pietermaritzburg High

Court (Kondile J), inter alia, interdicting BTA, Bambanani and the
fifth and sixth respondents (the taxi registrars) from implementing
the agreement pending the finalisation of an application to have
the decision by the registrars to endorse the agreement set aside.
In the alternative, Mzamba and the second appellant sought an
order declaring the agreement to be invalid.

[13] In the court below the second, third, fourth, fifth and sixth
respondents did not oppose the application and indicated that they
would abide the decision of the court. They adopted the same
attitude before us.

[14] After considering the facts and the relevant statutory
provisions, McLaren J held that the participation of the two
registrars in the process culminating in the agreement amounted to
administrative action within the meaning ascribed to that
expression in terms of the Promotion of Administrative Justice Act
3 of 2000 (‘PAJA’). He held, however, that the appellants failed to
prove on a balance of probabilities that the decision or conduct by
the two registrars adversely affected their rights, or that it had a
direct external legal effect, all requirements for the review of
administrative action under PAJA. In his view the right of members
of BTA to operate the route was by virtue, in each instance, of a

public permit and not the agreement. He concluded that the
agreement did not affect the appellants’ rights in any way because
the agreement ‘simply is one between the first and second
respondents in terms whereof the second respondent shared its
limited geographical half share of the Port Edward taxi rank with
the first respondent’s members, allowing the latter to park there
and collect passengers.’ It is these latter conclusions that the
appellants challenge.

[15] It is necessary at this stage to examine the statutory
framework within which minibus taxi operators are obliged to
operate.

[16] The Road Transportation Act 74 of 1977 (the RTA) provides
for the control of certain forms of road transportation and for
matters connected therewith. The authority to operate a minibus
taxi within or across particular geographical areas is granted by
local boards established in terms of the RTA (see s 7). This is
done by issuing a public permit. Section 21 deals with the
conditions governing the issue of a permit. Section 21(3)(e)
provides that the permit should specify:
‘the points between and the routes upon which or the area or areas within
which the motor vehicle to which it refers may be used in road transportation,

and if any restriction is imposed in connection with any transportation upon
any portion of such a route or routes or in any area or areas or in any portion
of such area or areas, the points between or the area within which such
restriction shall be applied and conditions thereof’.

[17] The National Land Transport Transition Act 22 of 2000 (the
NLTTA) was enacted to provide for the transformation and
restructuring of the national land transport system of South Africa
and matters incidental thereto. Section 2, inter alia, provides the
measures to give effect to national policy concerning the first
phase of the transformation and restructuring process and to
achieve a smooth transition to a new system, applicable nationally.

[18] In the province of KwaZulu-Natal, the KwaZulu-Natal Interim
Minibus Taxi Act 4 of 1998 (the KNIMTA) applies. Its preamble
states that it was enacted as interim legislation to regulate the
minibus taxi industry and to formalise, restructure and legalise
minibus taxi registration and services during the period leading up
to the enactment of national and provincial land transport
legislation, and to provide for matters incidental thereto. It has not
been suggested that the provisions of the KNIMTA are in any way
in conflict with any of the provisions of the NLTTA or that they do
not apply.

[19] The KNIMTA provides for the appointment of a taxi registrar
(s 5). In s 7 the registrar is endowed with certain powers, including
the power to instruct the relevant parties, where there is a dispute
concerning routes, to appear before him or her in order for a
hearing to take place to enable a decision to settle the dispute.
Section 25 provides for the establishment of a KwaZulu-Natal
Interim Minibus Taxi Tribunal, which has the authority, inter alia, to
hear and decide appeals against any decision of the Taxi Registrar
relating to disputes about the operations of minibus taxi services.

[20] It is clear from the provisions of the KNIMTA that its object is
to ensure that minibus taxi operators operating within its
jurisdiction do so legitimately and that all the statutory prescripts
for such operations are complied with. In s 3 of the Act the
principles governing provincial interim minibus taxi policy are spelt
out. These include the prevention of encroachment on services
provided by duly authorised operators and the promotion of taxi
services within the law.

[21] In the definition section of the KNIMTA there is reference to
an ‘area defined permit’, in terms of which a local road
transportation board established in terms of the RTA may
authorise minibus taxis to conduct operations within a defined

geographical area. It is evident that, in executing his or her
regulatory functions, a registrar must ensure that the appropriate
public permit has been issued to minibus taxi operators conducting
taxi services within the province.

[22] The two registrars in question, in appending their signatures
and thus their apparent assent to the agreement, purported to act
in terms of the regulations promulgated in terms of the KNIMTA
and in particular in terms of regulation 18.

[23] It is necessary to consider the provisions of regulation 18:
’18.
Agreements between minibus taxi associations.─ (1) The Provincial
Taxi Registrar shall prescribe a document to be completed and signed by
minibus taxi associations operating minibus taxi services ─

(a)
of common origin and/or destination;

(b)
within a commonly defined geographical area; and/or

(c)
sharing ranks or other public facilities which the general public is

also entitled to use,

which document shall be referred to as an agreement document.
(2)
The agreement document shall include details regarding ─

(a)
routes or geographical areas operated by the affected minibus

taxi associations;

(b)
shared routes, ranks or other public facilities;

(c)
existing operational arrangements; and

(d)
any conflict or contestation of routes, ranks or other public

facilities.
(3)
Minibus taxi associations shall when requested by the Provincial Taxi
Registrar, complete an agreement document which shall be signed by the
chairperson of the minibus taxi association.
(4)
A minibus taxi association which refuses to complete an agreement as
contemplated in subregulation (3) shall be ─

(a)
subject to a fine of R10,000; and

(b)
suspended from registration until it complies with the

requirement.
(5)
Minibus taxi associations shall at all times abide by the terms and
conditions in the agreement document and shall ensure that their members
operate in accordance with these terms and conditions.
(6)
A minibus taxi association which contravenes the provisions of sub-
regulation (5) shall be ─

(a)
liable to a fine of R10,000; and

(b)
suspended from registration until it complies with the provision.’

[24] McLaren J described regulation 18 as ‘gibberish’. It is difficult
to make sense of its provisions and substantial parts may well be
of questionable validity. As can be seen it provides that the
provincial registrar is obliged to prescribe a form which it is
envisaged will be completed by taxi associations and will comprise
an agreement dealing with specific matters relating to taxi
associations. Regulation 18(3) appears to oblige taxi associations

to comply with a request by the registrar to complete such an
agreement. Regulation 18(4) provides a criminal sanction for
failure to comply with such a request and renders the offending
association subject to suspension. Regulation 18 does not,
however, on any reading, confer authority on the registrar to
sanction the operation of minibus taxi services beyond the
provisions of the RTA which is the primary regulatory statute. So,
for example, it is not within the power of the registrar to issue a
public permit. An agreement between associations cannot by itself
transfer or bestow the right to operate along a specific route. That
right, as referred to earlier, is by way of a public permit in terms of
the RTA. More importantly, the regulation does not empower the
provincial registrars to nullify the rights that flow from a properly
issued public permit.

[25] It is common cause that in the present case members of the
BTA have the relevant permits authorising them to operate the
route. Properly construed, the appellants’ complaint is that their
members will be prejudiced financially by the increased
competition due to the BTA operating the route. Counsel
representing the appellants was constrained to concede that their
main objection to BTA operating from the Port Edward taxi rank

was that their members would be subject to competition. Counsel
was unable to point to any other form of prejudice to which the
appellants would be subjected as a result of BTA and Bambanani
sharing the latter’s half of the Port Edward taxi rank in terms of the
voluntary arrangement between them.

[26] In a throwaway line, in a replying affidavit, the appellants
contend that they intend challenging the validity of the public
permits. The present appeal does not involve a consideration of
that issue.

[27] It appears that the appellants misconceived their remedy. If
indeed the public permits were issued irregularly, the decisions to
issue them would be ones that would adversely have affected the
appellants and would have had a direct external effect. They would
qualify as reviewable decisions within the parameters of PAJA.

[28] In the present case, BTA and Bambanani voluntarily
concluded an agreement in terms of which the latter provided the
former with the use of its half of a taxi rank. Even if one assumes
that a ‘request’, as envisaged in regulation 18(3), by the fifth
respondent to Bambanani and BTA to complete an agreement
document, may amount to administrative action, the problem is

that it was never the appellants’ case that there had been such a
request nor was there any evidence to that effect. There was,
therefore, no administrative action by the fifth respondent in terms
of the regulation because there was no decision that amounted to
such action as defined in s 1 of PAJA. The endorsement by the
two registrars provided no further legal impetus to the agreement
voluntarily concluded by Bambanani and BTA. It did not confer the
authority to operate the route. That was already in place by virtue
of the public permits. There was thus no administrative action by
either registrar which was open to challenge by the appellants,
either in terms of PAJA, or otherwise.

[29] To prevent BTA members from using the Port Edward taxi
rank would be to frustrate the rights acquired by them in terms of
the relevant permits from the relevant road transportation boards,
which are the primary regulators of minibus taxi operators. The
regulatory statutes were never intended to frustrate lawful
competition. On the contrary, they were designed to ensure safety,
efficiency and lawful competition in the public interest.

[30] In my view, McLaren J was correct in the latter part of his
reasoning referred to in para [14] above and correctly dismissed
the application in the court below.

[31] For the reasons stated, the appeal is dismissed with costs
including the costs of two counsel.

________________
M S NAVSA
JUDGE OF APPEAL

CONCUR:

HARMS

JA
MTHIYANE
JA
PONNAN
JA
MAYA

AJA