THE SUPREME COURT OF APPEAL OF SOUTH
AFRICA

REPORTABLE
CASE NO:   51/2005

In the matter between

THE MEMBER OF THE EXECUTIVE COUNCIL
FOR PUBLIC WORKS, ROADS AND TRANSPORT,
FREE STATE PROVINCIAL GOVERNMENT                   FIRST APPELLANT

REGISTRAR : PROVINCIAL TAXI REGISTRAR,
PUBLIC WORKS, ROADS AND TRANSPORT,
FREE STATE PROVINCIAL GOVERNMENT              SECOND APPELLANT

and

PHUTHANANG TRANSPORT SERVICE (PTY)
LIMITED                                                                                             RESPONDENT

CORAM:
HOWIE P, STREICHER, MTHIYANE, HEHER JJA and
MAYA AJA

HEARD:

12 MAY 2006
DELIVERED:
31 MAY 2006
Summary:
Interpretation and application of s 18 of the Free State Passenger
Transport Act 16 of 1998 read with regulations 7 and 8 of the regulations
promulgated under the Act.
Neutral Citation:
This judgment may be referred to as MEC Public Works,
Roads & Transport: Free State Provincial Government v Phuthanang Transport
Service [2006] SCA 73 (RSA).

JUDGMENT

MTHIYANE JA:

MTHIYANE JA:

[1] This appeal is concerned with the interpretation and application of
s 18 of the Free State Interim Passenger Transport Act 16 of 1998 (as
amended) read with regulations 7 and 8 of the regulations1 promulgated
under the Act. The purpose of the Act is to regulate and control the
minibus taxi industry. It seeks to achieve this by creating a mechanism
for registering secondary and primary associations or interprovincial
associations and their members with a Provincial Registrar. The nature of
the association involved in this case is of no moment. The procedure for
registration is prescribed by the Act and fleshed out in the regulations.
The Act also created an appeal forum in the form of a Provincial Appeal
Tribunal, presided over by a Member of the Executive Council of the
Provincial Government or his appointee to handle appeals against refusals
to register an association. It is the Registrar’s refusal to register the
applicant as a taxi association and the subsequent failure of an appeal to
the MEC that led to this case.

[2] The respondent launched an application in the Free State High
Court seeking an order reviewing and setting aside the first and second
appellants’ refusal to register it as an association in terms of s 18 of the
Act. I shall for the remainder of this judgment refer to the first and second
appellants as ‘the MEC’ and ‘the registrar’ respectively. The applicant
succeeded in its application in the High Court which set aside the refusal
and ordered that the applicant’s application for registration under s 18 of
the Act be remitted to the registrar for reconsideration in the light of its

1 The regulations were published as ‘Free State Interim Passenger Transport Regulations’ in the Free
State Provincial Gazette No. 220 of 1998.

judgment. It further ordered that, pending reconsideration, the members
of the applicant who had permits during 1997 be allowed to continue to
operate their taxis. The appeal is against that order.

[3] The provisions of the Act relevant to the applicant’s application are
the following:
‘18 Registration of associations, members and non-members
(1) A secondary and a primary association or inter-provincial association, and
each member thereof, or a non-member, must in the prescribed manner and
accompanied by the prescribed application fees, submit a written application
for registration to the Registrar.
(2) The Registrar must grant a certificate of conditional registration and a
registration number to an association and each of the members of a primary
association who upon application satisfies him or her-
(a) that it has been in existence for the prescribed minimum period:
Provided that the Registrar shall have a discretion to register
associations that have been in existence for lesser periods where in his
or her opinion this is justified;
(b) that the number of its members or, in the case of a secondary
association, the number of registered primary associations affiliated to
it, meets the prescribed minimum number: Provided that the Registrar
shall have a discretion to register associations with fewer members or
affiliated registered primary associations, as the case may be, where in
his or her opinion this is justified for geographical or demographic
reasons;
(c) that the constitution submitted by the association has been signed and
accepted by each of its members or, in the case of a secondary
association, by each of its affiliated registered primary associations and
is consistent with and encompasses the provisions of the Standard
Constitution and other prescribed requirements;
. . .

(3) The Registrar must grant a certificate of registration and registration number
to an association or inter-provincial association, who upon application satisfies
the Registrar that-
(a) it has been in existence for the prescribed minimum period, subject to
the proviso in subsection (2)(a);
(b) the number of members or affiliated registered primary associations, as
the case may be, meets the prescribed minimum number, subject to the
proviso in subsection (2)(b);
(c) the constitution submitted by the association has been signed and
accepted by each of its members or affiliated registered primary
associations, as the case may be, and is consistent with and
encompasses the provisions of the Standard Constitution and other
prescribed requirements;
. . .
(6) If, after considering the application for registration, the Registrar is not
satisfied that the applicant has complied with the requirements for registration,
he or she must inform the applicant of the requirements not met, and may
provide the applicant with advice and assistance in order to enable the
applicant to meet the requirements for registration.’

[4] Regulations 7 and 8 provide as follows:
‘7
Minimum number of members or primary associations required for
registration of association
Subject to s 18 of the Act-
(a)
the minimum number of members which an association must have before
it may be registered in terms of the Act, shall be 20 (excluding a
conditional member referred to in the Standard Constitution);
(b)
the minimum number of primary associations based in the Province to be
affiliated to a secondary association before it may be registered in terms of
the Act, shall be two.
Minimum period that association must have existed to qualify for
registration

Subject to s 18 of the Act, an association must have been in existence since 28
February 1995 in order to be registered in terms of the Act.’

[5] The Act came into effect on 20 November 1998 and the regulations
on 27 November 1998. The operation of the Act was backdated to 1997.
Prior to their commencement a ‘general information document’ (for lack
of a better description) was issued by the National Department of
Transport to assist prospective applicants for registration. This document
issued as ‘General Information Regarding the Registration of a Taxi
Association’ foreshadowed threshold requirements for registration
embodied in s 18 of the Act and amplified by regulations 7 and 8. It is not
clear when the general information document was issued. Suffice it to say
that it preceded the Act and the regulations. Although the application was
made before the effective dates of the Act and regulations the application
purported to be made in law of the legislation and was treated by all as
such. At the time the application was considered the Act and the
regulations had come into effect.

[6] The applicant lodged its application for registration with the
registrar on 17 June 1997. It appears that the application form submitted
to the registrar contained particulars of the applicant, the date of its
incorporation (28 November 1996) and the names and addresses of its
office bearers. The application was refused by the registrar on two
grounds. The first was that the applicant had been established after 28
February 1995. The second was that the association did ‘not have a
minimum number of 20 members as contemplated by the Act’.

[7] On 18 September 2000 the applicant lodged an appeal with the
MEC against the refusal. The applicant’s appeal was dismissed on the

same two grounds as those advanced by the registrar. But in addition the
MEC raised a further difficulty: that the applicant’s constitution was
defective in that its terms ‘were principally not in keeping with the
provisions of the Standard Constitution provided for in the Act’. In terms
of section 1 of the Act ‘Standard Constitution’ means ‘a prescribed set of
rules and procedures that govern the affairs of registered associations, and
includes a Code of Conduct, a Grievance Procedure and a Disciplinary
Procedure for members, or affiliated registered primary associations, as
the case may be, of those associations’. The MEC took the view that the
applicant’s constitution did not meet the prescribed standard and the
application for registration failed on that account as well.

[8] The question is whether the registrar was justified in refusing the
application for registration. The outcome of the decision depends upon
the interpretation and application of the Act and the regulations to the
facts advanced on the applicant’s behalf. The relevant provisions of the
Act and the regulations are clear and unambiguous and must therefore be
given their ordinary meaning. Mr Ploos van Amstel, for the applicant did
not attempt to persuade us otherwise. He argued, however, that in
refusing to register the applicant the registrar had not applied his mind
properly to the matter and that the court a quo was correct in setting aside
his decision and that of the MEC.

[9] The sole issue raised on appeal by Mr Moerane for the appellant
was that when the application for registration was lodged with the
registrar it was not accompanied by an application by each member of the
applicant as required by s 18(1) of the Act. If that point is good it is of
course decisive of the appeal and disposes of all the other issues raised on
behalf of the respondent.

[10] Although the Chairperson of the applicant, Mr Tholo Daniel
Motsoeneng, states in his affidavit that the applicant had 35 members at
the time of the application, of whom 22 members had legal permits and
the other 13 had applied for permits, only the applicant, Phuthanang
Transport Services, applied for registration. This is, however, contrary to
18(1) of the Act which requires that ‘each member . . .  must in the
prescribed manner submit a written application for registration to the
registrar.’ It is therefore clear that the application was defective for failure
to comply with the peremptory provisions of the Act.

[11] Confronted with the applicant’s failure to meet the threshold
minimum membership requirements, Mr Ploos van Amstel referred us to
seven legal permits which were filed of record in this appeal. It was not
clear whether these permits were originally attached to the applicant’s
application for registration. This was by all accounts a desperate attempt
to salvage a case that was desparately slipping from the applicant’s hands.
As correctly pointed out by Mr Moerane for the appellants, the dates on
the permits concerned clearly indicate that they could not have
accompanied the application for registration on 16 June 1997. The first of
these permits is dated 26 February 1999 and the rest bear much later
dates. Even if these certificates were indeed attached they would still not
have assisted the applicant because s 18(1) of the Act required that each
member of the association ‘must in the prescribed manner . . . submit a
written application for registration to the registrar.’

[12] The court a quo held that there had been substantial compliance
with the requirements for registration and that the registrar should have
registered the applicant as such under s 18 of the Act. I do not agree. In s
18(2)(a) and (b), a discretion is indeed conferred on the registrar to

register associations that have been in existence for a lesser period than
the prescribed minimum period and those who have less members than
the prescribed minimum. But the proviso is that the registrar can condone
non-compliance ‘where in his or her opinion this is justified for
geographical or demographic reasons.’ It is plain from the wording of the
section that the exercise of discretion is not there for the asking. Nor can
it be exercised in vacuo. It was for the applicant to place facts or
information before the registrar, which the latter could then have
considered in order to come to a proper decision as to whether non-
compliance with the section could be condoned. We are not privy to such
information and there is a total absence of clarity from the papers as to
what would have justified the exercise by the registrar of the discretion.
In fact the appellant’s case throughout was that it had a membership of
more than 20. But when it lodged its application for registration only the
applicant, Phuthanang Transport Service (Pty) Ltd, did so. In my view the
applicant did not comply with the provisions of s 18 of the Act and
regulations 7 and 8 and the application was therefore correctly refused.
The court a quo should have found accordingly.

[13] In the result the appeal succeeds with costs, including costs
consequent upon the employment of two counsel. The order of the court a
quo is set aside and replaced with the following:
‘The application is dismissed with costs.’

_________________________

KK MTHIYANE

JUDGE OF APPEAL

CONCUR:

HOWIE P
STREICHER JA
HEHER JA
MAYA AJA