IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Case No. 1756/2014
In the matter between
GIDEON GU DLAMINI Applicant
and
DERRICK DLAMINI 1st Respondent
SABELO DLAMINI 2nd Respondent
SWAZILAND LOCAL KOMBI ASSOCIATION 3rd Respondent
Neutral citation: Gideon Gu Dlamini v Derrick Dlamini & 2 Others (1756/2014) [2015] SZHC 69 (10 April 2015)
Coram: MAMBA J
Heard: 27 March, 2015
Delivered: 10 April 2015
[1] Civil Law – Application for an interdict – requirements for an interdict restated – clear right – violation or apprehension of violation of such right and absence of a suitable alternative remedy open to the applicant.
[2] Civil law – Application for interdict – court has a judicial discretion to grant or refuse such interdict even where requirements of an interdict are established.
[3] Civil Practice and Procedure – no application for joinder made or ordered by the court and respondent citing further respondents without leave of the court. Such further respondents not served with court papers but specific orders sought against them. This is procedurally improper and not permitted by the court.
[4] Practice and Procedure – trial court has judicial discretion on issue of costs. Where both parties are equal losers in a case, fair that each must pay his own costs of the proceedings.
[1] This is an application for an interdict or injunction whereby the applicant prays inter alia for an order ‘Interdicting and restraining the first and second respondents from interfering with the operations of the Applicant’s Road Transportation Service Permit Number 57112014.’
[2] This application, which was accompanied by a certificate of urgency filed by the applicant’s attorney, was served on the third respondent on 16 December, 2014, just a day before it was due to be heard, ie on 17 December 2014. It was filed with the Registrar of this Court on 15 December 2014.
[3] I mention the dates in the preceding paragraph because the respondents have alleged or averred in their opposing affidavits that the applicant has given them too short a period to respond meaningfully to this application whilst he, the applicant, bases his application on events that occurred on 27 November 2014. The respondents thus argue that the actions of bringing this application on such short notice is an abuse of the process of this court and this court must consequently refuse such abuse and dismiss this application with a punitive order for costs.
[4] The respondents have also filed a counter application. In that counter-application, the respondents rather strangely, unilaterally cite and add one Sikelela Dlamini as the 4th respondent, the Chairman of the Road Transportation Board as the 5th respondent, the Attorney-General in his nominal capacity as the 6th respondent and one Sikelela Pius Magagula as the 7th respondent. Although these persons are added in and cited by the respondents herein, there was never even an attempt made to serve them with any papers herein. This is notwithstanding the fact that specific orders are being sought against them by the three respondents herein. I find this strange and just plainly bad in law. This is particularly the case when regard is had to the very vociferous objection of non-joinder raised by the respondents.
[5] The applicant is himself not free from blame in this regard. Whilst the applicant specifically avers in his founding affidavit that the chairman of the 3rd respondent categorically disowned the actions of the first and 2nd respondent and stated that these respondents were not acting in the course and within the scope of their mandate as servants of the third respondent, the third respondent is still being sued herein although there is no order being sought against it. The reason for such citation is certainly unclear to this court. It is spurious and bland. Again, the applicant’s replying affidavit, bar in relation to the counter-application, is nothing but an argumentative piece. Both sides have not covered themselves in glory in this application. Both sides have been extremely cavalier and slap-dash in their approach herein.
[6] The facts that are common cause in this application are these:
6.1 The applicant is the holder of a Road Transport Service Permit to operate a non-scheduled public passenger service vehicle between Manzini and Mbabane. This permit is Number 57112014 and was granted to him by the Road Transportation Board on 25 November 2014.
6.2 The said Board is the Authority vested with the power to grant such permit and the said permit was granted after due and proper publication of such application and there was no objection from any one or quarter to such grant or application.
6.3 Sometime in 2013, one Sikelela Pius Magagula was issued with Permit Number 592013 by the Board. He then unlawfully leased such permit to one Sikelela Dlamini and lied to the Board that the said permit had been lost. When the board discovered the lie, it then cancelled the permit.
6.4 Sikelela Dlamini then applied and was granted his own permit to replace that which had been granted to Pius Magagula and later cancelled by the Board. However, on 18 September 2014 the applicant applied for a grant of a permit again to replace that which had been granted to Pius Magagula. Again, this permit was granted. This is the very same permit that he now wishes to utilize.
6.5 The 3rd respondent acting on behalf of its members, is opposed to this move. It argues that the permit; ie 57112014 was erroneously granted by the Board.
6.6 Although, the parties differ in this regard, it is the 3rd respondent, through its duly appointed officers, the first and second respondents, who has prevented the applicant from operating or utilizing permit 57112014 from the Manzini bus terminus or rank.
6.7 The sole reason for the objection is that the permit was granted in error by the Board and to allow the applicant to use his permit under these circumstances would lead to mayhem, chaos and even bloodshed amongst the members of the third respondent. The third respondent states that there is no further space or room for the service on the relevant route. There is an over supply of the service already and this is a fact known to the municipality of Manzini and the Road Transportation Board.
6.8 In summary form, these are the essential facts of the matter before this Court. It is also for this reason – erroneous grant of permit 57112014 – that the third respondent seeks an order in its counter-application-for the cancellation and or withdrawal or permit 57112014 issued to the applicant. There are other ancillary and interim orders sought by the third respondent against the Road Transportation Board and the applicant in its counter-application. All these orders are premised on the averment that the said permit was erroneously granted.
[7] I have observed earlier in this judgment that the counter – application, whatever its merits, has not been served on the said Board. Indeed, there was no application made before this court to join the Board and the two Sikelelas herein as further respondents in this application. For that reason alone, this counter application stands to be refused and is hereby refused.
[8] The 3rd respondent has, in my judgment, unmeritoriously spilt a lot of ink, spent a lot of time and energy objecting that the matter is not urgent and that there has been a fatal issue of non-joinder of interested parties in this application. Admittedly, permit 57112014 was granted to the applicant by the Board. However, that does not make that Board a person with a direct and substantial interest in the matter, where the applicant seeks to enforce his perceived rights flowing from such grant. The applicant has, on the face of it, a valid permit and the third respondent, acting through the rest of the respondents herein, seeks to deny the applicant those rights flowing from that permit. To my mind, the Board has no direct and substantial interest in such an enquiry. Where, however, anyone claims that the actions of the Board were erroneously exercised or are unlawful, the Board has a direct and substantial interest in the matter by virtue of its actions being called into question. For that reason, the objection by the third respondent that there has been a failure to join the Board, is hereby dismissed.
[9] The third respondent has also raised the issue of urgency claiming that there are no sufficient grounds stated in the founding affidavit by the applicant justifying that the matter be heard urgently and within the time allowed to the respondents in the notice of motion. Again, I find no merit on this point. If indeed there was any merit regarding short service, this has been overtaken by the events in this very application. The respondents have had sufficient time to ventilate and put their defence to Court. I see or find no short service in this regard. On the urgency of the application in general; the applicant has on the face of it, a valid permit to ply the route stated in that permit. This permit was granted to him in November 2014. He was obstructed from utilizing or using that permit by the respondents in late November 2014 and early December 2014. The last such obstruction was on 12 December 2014 which culminated in this application being filed on 15 December 2014. I do not find that there was undue delay by the applicant in this connection.
[10] Where persons, seemingly, take the law into their own hands, ie without recourse to law, such a situation is potentially anachronistic to the behavior of a civilized society. It has the potential to lead and result into anarchy or lawlessness. It thus demands an urgent and swift attention of the courts in an endeavor to maintain or restore peace, law and order in society. An interdict is one such measure to achieve these broad aims and objectives of the law through the machinery of the courts.
[11] That the applicant should have filed for an action for damages instead of an injunction under such circumstances is once more misconceived for the reasons stated in the preceding paragraph. In any event, an action for damages would probably be inappropriate and unduly cumbersome or prejudicial to the applicant in this case. For instance, to adequately quantify the applicant’s damages in this case would be tediously difficult and onerous and would take a long time to finalise. Meanwhile, the respondents would be unlawfully denying him the right to use his permit lawfully granted by the Board. It must be remembered that such permit remains valid unless and until lawfully declared otherwise by a competent authority. Therefore, in relative terms, such prejudice equates to the want of an alternative remedy that one has to establish in an application for an interdict.
[12] For the above reasons, I hereby hold that the applicant has satisfied all the requirements for an interdict: a clear right, a violation of that right, and the absence of an alternative adequate remedy to satisfy or remedy the said violation.
[13] The grant or refusal for an interdict – where the requirements thereof have been satisfied-lies within the discretion of the court. It is a judicial discretion that must be exercised with due regard to all the relevant or pertinent circumstances of the case at hand.
Vide Plettenberg Bay Entertainment (Pty) LTD v Minister van Wet en orde en ’n ander 1993 (2) SA 396 (C), Beecham Group LTD v B-M Group (Pty) LTD 1977 (1) SA 50 (T) and Chopra v Avalon Cinemas SA (Pty) LTD and Another 1974 (1) SA 469 (D).
[14] In the instant case, I think the 3rd respondent has made out a strong, albeit prima facie case that the permit in question herein was erroneously issued by the Board. Amongst other considerations herein is the fact that a permit to ply the same route and space had already been issued by the same Board to Sikelela Dlamini. These factors are very weighty in considering whether this Court should exercise its discretion in favour of granting the interdict sought herein. It is to be regretted that the Board has not been properly cited and served with the papers herein by the 3rd respondent. It is the third respondent that claims the error and invalidity in granting the said permit.
[15] To grant the interdict as prayed would in effect be authorizing the use of an invalid and erroneous permit. It would in fact be authorizing or legitimatizing the use of a second permit to service one particular need, space or circumstance. That would clearly be a potent recipe for chaos, confusion and possible breach of the peace in a serious way. To authorize or allow this would, I think, be a serious miscarriage of justice. I am not prepared to travel on that treacherous and perilous route or journey.
[16] For the above reasons, I cannot grant the interdict sought by the applicant herein. To do so would simply not be a proper exercise of the discretion reposed in me.
[17] If the 3rd respondent firmly and strongly believes that it has a case against the lawfulness or validity of permit 57112014, it should take up such issue with the Road Transportation Board or this Court; properly, for such a relief as soon as possible to avoid any further uncertainty on the issue. A unilateral and overt or open defiance or failure to enforce the terms of the requisite permit may, likewise, breed anarchy and lawlessness in the relevant transportation industry or sector. That must be avoided at all costs. I do not think that it would be proper to simply order the joinder of the Board at this late stage of the proceedings.
[18] Technically, both parties have failed or lost in this application. I think that, in the exercise of my discretion regarding costs, the proper order must be that each party must bear its own costs and it is so ordered.
MAMBA J
For the Applicant : Mr. M. Mabila
For the Respondents : Mr. N. Mabuza
