IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) 39 OF 2011
In the matter between:
TRAFFIC COMMISSIONER 1ST APPELLANT
ROAD TRANSPORT BOARD 2ND APPELLANT
MINISTER OF PUBLIC WORKS
AND TRANSPORT 3RD APPELLANT
and
MASERU REGION TRANSPORT
OPERATORS RESPONDENT
HEARD: 12 OCTOBER 2011
DELIVERED: 21 OCTOBER 2011
CORAM: MELUNSKY JA
FARLAM JA
HURT JA
SUMMARY
Court a quo discharging rule nisi and thereafter making additional orders. Such orders not requested nor forming part of issues before it. Court functus officio. Practice of granting orders that are not sought for deprecated.
Whether appellants entitled to appeal against reasons for judgment – reasons not part of declaratory order – no appeal permitted.
JUDGMENT
MELUNSKY, JA
[1] This is an appeal against orders made by Nomngcongo J in the High Court. The facts show that the Road Transport Board (the 2nd appellant) made a determination of new passenger transport fares for taxis and buses in July 2011. The fares were intended to come into effect on 1 August 2011. The respondent, the applicant in the Court a quo, is the Maseru Region Transport Operators, an association of taxi operators. On 29 July 2011, and at the instance of the respondent, Monapathi J granted a rule nisi which called upon the appellants to show cause why the implementation of the new passenger transport fares should not be stayed pending finalisation of the application and why the 2nd appellant should not be directed to hold public hearings and to have regard to the representations of the respondents and its members before publishing the new transport fares. The full terms of the order are set out hereunder:
1. That the Rules of this Honourable Court pertaining to normal procedural formalities, modes and periods of service and time limits be dispensed with on account of urgency hereof.
2. That a rule nisi be and it is hereby issued and returnable on the 8th August 2011 calling upon the respondents to show cause, if any, why an order the following terms cannot be made final, to wit,
a) That the intended implementation of new passenger transport fares by the respondents on the 1st August 2011 be stayed pending finalisation of this application.
b) That the respondents be directed, specifically the 2nd respondent, to comply with the provisions of section 7of the Board Transport Act by convening public hearings to have regard to the representations of the applicant and its members before publicising the new transport fares.
(c) That the copy of the interim court order herein be published in a newspaper widely circulating in Lesotho.
(d) That the respondents be ordered to pay costs of this application on the attorney and client scale.
(e) That applicant be granted such further and/or alternative relief.
3. That prayers 1 and 2 (a) and (c) operate with immediate effect as interim relief.
[2] Nomngcongo J dismissed the applications and discharged the rule in what was clearly intended to be paragraph 1 of his order. The learned Judge, however, went on to say the following:
“But in [discharging the rule] it would be irresponsible of the Court to leave a vacuum that would leave commuters and operators of public motor vehicles confused, it would likewise be irresponsible to let what has clearly emerged as illegal for being ultra vires the powers of the Road Transport Board the practice of the Board to regulate fares. It seems to me that the Road Transport Act has left the industry to self-regulate subject to the provisions of section 18 (2) (c) (supra), at least in the matter of fares as they stand, i.e. the old fares remain in force.”
After making the aforesaid remarks, Nomngcongo J then added, or purported to add, the following paragraphs to the order:
“2. That the parties and their legal representatives meet [to] discuss the way forward in the light of the comments in this judgment.
3. That the first respondent gives this judgment the widest publicity among all interested parties.
4. That the parties’ legal representatives address the Court within fourteen dayson a further way forward.”
[3] It is against the aforesaid paragraphs 2, 3 and 4 of the order that the appellants, represented by the Attorney-General, appeal to this Court. On the appellant’s behalf it was correctly submitted that it was incompetent for the Court a quo to make the orders reflected in the aforesaid paragraphs 2 - 4. The lis between the parties was essentially contained in paragraphs 2(a) and (b) of the rule nisi. Once a final judgment on those issues was delivered by the discharge of the rule, the Court became functus officio and incompetent to decide other issues which were not before it. (See Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306 F-G; Transvaal Canoe Union v Butgereit and Another 1990 (3) SA 398 (T) at 403E – 404C).
[4] Furthermore the additional orders had not been sought by the parties or agreed to by them nor, as I understand the position, had the parties been requested to address the Court thereon. In several of its decisions this Court has deprecated the practice of granting orders which are not asked for by the litigants (see Presiding Officer of NSS and Another v Malebanye (2007-2008) LAC 175 at 181 C-H).
[5] It was clearly beyond the competence of the Court a quo to gratuitously add paragraphs 2 – 4 of the Order and the said paragraphs have to be set aside.
[6] A final question that is before us relates to the statement of Nomngcongo J to the effect that the discharge of the rule creates a vacuum which would result in confusion among commuters and operators of public motor vehicles. The appellants’ concern seems to be based on the fact that the Court a quo was wrong in holding that the second appellant now had no power to now determine passenger fares. We were referred to Section 29 of the Road Transport Act 1981 and especially to Regulation 11 of the Road Transport Regulations 2004 which appears to suggest the contrary. However, we make no finding in this regard as the relevant regulation was not before the Court a quo and seems to have been drawn to our attention merely to disprove the statement that the discharge of the rule has resulted in “a vacuum”. The Court a quo’s judgment was based on an interpretation of section 7 of the Road Transport Act. That is what led the learned Judge to discharge the rule. There is no specific appeal against that decision. It is not necessary for us to decide whether the learned Judge was correct in discharging the rule and we refrain from making any decision in that regard. What the appellants apparently seek to do is to appeal against the reasons of the Court a quo for adding paragraphs 2, 3 and 4 to the order. This, in our view, is not permissible in this case: see, e.g., Western Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (AD) at 355.
[7] The result is that the appeal succeeds with costs to the extent that paragraphs 2, 3 and 4 of the Order of the Court a quo are set aside.
______________________
L.S. MELUNSKY
JUSTICE OF APPEAL
I agree:
I.G. FARLAM
_______________________
N.V. HURT
For the Appellants: Adv T. Makhethe KC with
Adv L.V. Letsie and
Adv M. Sekati
For the Respondent: Adv L.A. Molati
