IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 2159/94
In
the matter between:
LAZARUS
MAKAMA Applicant
and
THE
ROAD TRANSPORTATION BOARD 1st Respondent
THE
ATTORNEY GENERAL 2nd Respondent
SANDILE
DLAMINI 3rd Respondent
Judgment
(7/6/95)
On
this application Mr. Makama, who operates an authorised public
transport service, seeks to have set aside on review a decision of
the Road Transportation Board made on 19th July 1994 renewing Mr.
Dlaraini's road transportation permit No. 09115/94. He also seeks a
further order on review directing the Board to hear and determine an
objection admittedly lodged by him to the renewal of the permit.
Mr.
Makama's application for review was itself filed on 9th December
1994. His founding affidavit does not address the reasons for the
passage of almost five months in the meantime.
The
circumstances leading to the application for review are in certain
respects unusual. In July 1992, Mr. Dlamini applied successfully to
this court by way of review to set aside a decision of the Road
Transportation Appeal Board refusing him a permit to operate an
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unscheduled
koiribi/taxi service between Mbabane and Manzini. In consequence of
that decision on review, the Road Transportation Board issued him
Permit No. 09115 to operate a passenger service between Manzini and
Mbabane using one Nissan 15 seat vehicle for one year from 21st July
1992.
Then
on 3rd February 1993, it issued him a further permit (described as a
"replacement" and numbered 09115/93) authorising him to use
a vehicle of the same kind of vehicle on an "express"
service between Manzini and Mbabane from 29th June 1993 until 30th
June 1994.
Before
the expiry of this permit, Mr. Dlamini duly gave notice in accordance
with the Road Transportation Act 1963 (No. 37 of 1963) of an
application by him for its renewal. For his part, Mr. Makama lodged
and served an objection to its renewal in accordance with the Act.
It
then fell to the secretary to the Road Transportation Board, as
required by section 10(3) of the Act to notify Mr. Makama as an
objector of the time and place at which the application would be
considered. It is common ground between Mr. Makama and Mr. Dlamini
that the secretary failed to discharge this duty. The Board, which
has been cited with the Attorney General as a party to this present
application, and duly served, has not sought to dispute this.
Subsequently,
in June 1994, Mr. Dlamini applied to this court directly for an order
increasing the number of taxis/kombis that he could operate under
Permit No. 09115 to three. Upon that application, he obtained on 15th
July 1994 an order of this court, the tenor of which was to amend the
order of this court made on "20th" July 1992 so as to
correct or set aside the decision of the "Road Transportation
Board" made on 29th April 1992 dismissing Mr. Dlamini's
application for a permit to operate "three" unscheduled
kombi/taxi services between Mbabane and Manzini.
Thereafter
on 19th July 1994, the Road Transportation Board issued to Mr.
Dlamini a permit (under the number 09115/94) authorising him to
operate three specified fifteen seat vehicles on an express service
between Manzini and Mbabane from that day until 30th June 1995.
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It
is not one of Mr. Makama's grounds of review that it was not upon to
Mr. Dlamini to obtain from this court, in the way and on the terms on
which he did so, a variation of the order of this court made on
review in July 1992 in respect of Mr. Dlamini's earlier appeal. On
the contrary, in his founding affidavit he appears to have accepted
that the order amending the earlier order on review was made properly
and to rely on it. With very great respect it is not apparent to me
that this right.
Mr.
Makama's application discloses four grounds on which he seeks to
review the Board's decision of 19th July 1994, i.e.:
(a) the
Board admittedly failed to notify him of the time and place of Mr.
Dlamini's application to review his permit before 30th June 1994,
notwithstanding that Mr. Makama was an objector:
(b) The
permits issues by the Board to Mr. Dlamini for the periods 1992/1993,
1993/1994 and 1994/1995 respectively were not in accordance with the
order made by this court in 1992 (as amended in 1994) because they
purported to permit a service between Manzini and Mbabane and not
between Mbabane and Manzini.
(c) In
renewing Mr. Dlamini's permit for the year 1994/1995, the Board had
not complied with the Act:
(d) In
the alternative, the Board wrongly applied this court's order of 15th
July 1994 prospectively rather than retrospectively.
I
agree with counsel for Mr. Dlamini that there is nothing in the
second of these grounds. The secretary to the Board was in breach of
his statutory duty on failing to notify Mr. Makama of the time and
place of the hearing of the application for renewal of Mr. Dlamini's
permit for the year 1994/1995. According to its own tenor the
decision of this court on 15th July 1994 was addressed to the issue
of a permit for the period 1992/1993. On any interpretation, it did
not
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relieve
the Board of its duty to comply with the statutory requirements of
the Act in considering Mr. Dlamini's application for the renewal of
his permit for the year 1994/1995. The Board failed to comply with
these requirements.
I
do not agree with the submission made for Mr. Dlamini, which is
expressed in his opposing affidavit in paragraph 12, that Mr.
Makama's objection was invalid because it could only be entertained
on a fresh application (i.e. presumably, one for renewal for the year
1995/1996) and that a renewal may only be refused if the applicant
has contravened the Act. Moreover, one practical consequence of the
order which Mr. Makama obtained from this court in July 1994 is that
the Board has permitted him to operate three vehicles for during the
year 1994/1995 otherwise than in accordance with the statutory
requirements of the Act. Mr. Makama was never a party to the
proceedings in this court in 1994.
The
history of this matter must be a matter of concern. On this
application for review Mr. Makama has joined and served both the
Board and the Attorney General. Neither has appeared in opposition.
The application to this court last year, in my view, was very
unusual; in any event the Board has for the year 1994/1995 renewed
Mr. Dlamini's without having complied with the procedural
requirements of the Act and it has done so in such a way as to
authorise him to use not one but three vehicles on his service. As a
matter of record, as I have just observed in another case, this Board
is frequently the subject of successful challenge on review because
of its failure to comply with the procedure prescribed by the
Legislature in the Act. This court does not intervene on review to
take over the functions of the Board in granting permits. It acts
only to ensure that the Board observes the correct procedure for
hearing and determining applications relating to road transportation
permits.
The
importance of insisting on that procedure in a system of commercial
licensing will be obvious.
In
the objection that he lodged in 1994 to the application for renewal,
Mr. Makama alleged that Mr. Dlamini had obtained his then
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existing
permit fraudulently. That is a very serious allegation. It was not
particularised in the objection itself; more importantly, it has not
been addressed on this present application.
The
other grounds in the objection all appear to me to relate to matters
which would have been equally applicable in respect of the terms of
the permits which Mr. Dlamini held prior to the 1994/1995 year. It
has not been suggested that Mr. Makama opposed the initial grant or
first renewal of that permit.
Nearly
five months passed from the time when the permit for 1994/1995 was
granted until the filing of this application for review however. The
reasons for that passage of time have not been addressed. The permit
that has been issued for this present year will expire shortly. After
some hesitation, the view I take is that in the exercise of my
discretion, I should decline to grant the relief now sought. Apart
from anything else, I see very little practical point in doing so. If
Mr. Dlamini pursues the renewal of his permit this year however, the
Board will have to comply with the statutory requirements. In
considering whether to renew the permit for three vehicles, it will
have to keep in mind that the tenor of the order of this court in
1994 was not to require it to do so for the year 1994/1995 or any
subsequent year. If it fails to observe the requisite procedure, its
decision may be subject to swift review on the part of any aggrieved
party.
The
application is on that basis refused, but with no order as to costs
in the circumstances.
DAVID
HULL
CHIEF
JUSTICE
Air Jordan 