Court name
High Court of eSwatini
Case number
2447 of 2006

City Council of Manzini v Swaziland Interstate Transport Association and Another (2447 of 2006) [2006] SZHC 112 (13 July 2006);

Law report citations
Media neutral citation
[2006] SZHC 112













IN
THE HIGH COURT OF SWAZILAND





CASE
NO. 2447/06



In the matter
between:



CITY COUNCIL OF
MANZINI








and






THE SWAZILAND
INTERSTATE TRANSPORT


TRANSPORT
ASSOCIATION
1st
RESPONDENT


TRANSNATIONAL
(PTY) LIMITED


T/A
ZEEMANS TRANSPORT
2nd
RESPONDENT






CORAM:
Q.M. MABUZA -AJ


FOR
THE APPLICANT: ADVOCATE FLYNN INSTRUCTED BY



ROBINSON BERTRAM
FOR 1
st
RESPONDENT : MR. MDLADLA



FOR 2nd
RESPONDENT : MR. MOFOKENG



















RULING 13/7/06















[1] Before me
is an urgent application brought by the City Council of Manzini who
is the Applicant.



[2] The
Applicant seeks the following order:



1. That the rules
in relation to service time limits as provided for by the rules of
this Honourable Court be and are hereby dispensed with in that this
matter be enrolled as one of urgency.



2. That the
Respondents be ordered to remove their concrete barriers or any other
objects that has been placed at the entrance and exit points of the
Applicants premises known as the Satellite Bus Rank, Manzini.



3. That a rule
nisi
be
and is hereby issued and to be returnable on a date to be determined
by this Honourable Court in the following terms:-






3.1. That the
Respondents be interdicted and restrained from interfering in any way
whatsoever with the operations of Satellite Bus Rank.



3.2. That the
Respondents be and are hereby ordered to comply with the memorandum
of understanding entered into between the Applicant and the first
Respondent on the 2
nd
May 2006.



3.3. That the
Second Respondent be interdicted and restrained from entering
Applicant's premises known as the old bus rank for purposes of
servicing its cross-border route and that it be ordered to re-locate
to the new bus rank known as the Satellite Bus Rank.



3.4.
That
the Second Respondent be interdicted and restrained from inciting
other cross-border passenger operators to reĀ­locate back to the
old bus rank or instigating such reĀ­locating.



4. That prayers
3.1 to 3.4 operate as an interim interdict pending the final
determination of this application.



5. The
Commissioner of Police or the Station Commander for the Manzini
Police Station be and are hereby authorized and directed to take such
lawful action as may be necessary to ensure that the order granted is
complied with, and to maintain peace and order and to prevent any
violence against the employees of the Applicant.



6. That the
Respondents be ordered to pay costs of this application inclusive of
costs of Counsel.



7. That the
Applicant be and hereby granted such further and/or alternative
relief as this Honourable Court may be deem fit.






[3] Briefly the
position is that the applicant seeks to restore law and order and
good governance in the City of Manzini where certain operaters
belonging to the 1
st
Respondent have run amok and have taken the law into their own hands.






[4] From the
papers filed off record it seems that the Satellite Bus Rank which is
owned by the Applicant is under the control of the 1
st
Respondent
by virtue of a Memorandum of Understanding entered into and signed by
the 1
st
Respondent and the Applicant on the 2
nd
May 2006.







[5] The rights and
duties of both parties are set out therein. The rights and duties of
the Applicant are set out in clause 4 thereof and those of the 1
st
Respondent are set out in clause 5 thereof. Clause 4 provides as
follows:







"RIGHTS
AND DUTIES Council shall:



4.1. Keep the
facility clean and tidy and ensure that no refuse is allowed to
accumulate within the facility, except in appropriate receptacles .



4.2. Keep the
facility in a good state of repair.



4.3. Maintain
the property in good order and condition including but not limited to
preventing blockages and obstructions from occurring in the drains,
sewerage and water pipes serving the facility.



4.4. Promptly
repair or make good all damage reasonably (not negligently) occurring
in the facility from time to time.



4.5. Shall at
its own expense provide for water and electricity required in the
facility.



4.6. Shall
assist the Association in establishing an office structure within the
facility."









[6] Clause 5
provides as follows:







"RIGHTS
AND DUTIES OF THE ASSOCIATION. The Association shall:







5.1 Exercise
all reasonable skill, care and diligence in the management of the
facility and shall carry out its obligations in accordance with
relevant laws and regulations, includingbbut not limited to traffic
laws, public health laws, municipal laws and laws governing public
transport in general.



5.2. Manage
operation of public transport within the facility and will make
quarterly returns to the Council on the management of the facility.



5.3. Be
responsible for control over and discipline of public transport
personnel within the facility who contravene laid down rules and
regulations.



5.4. Ensure
safety of public traveling in public transport from the facility.



5.5. Ensure
orderly loading and offloading of passengers, without placing an
obligation on the part of Council to provide an alternative facility
for non-loading or offloading vehicles.



5.6. Create a
conducive, neutral and convenient traveling environment within the
facility.



5.7. Not use
the facility or allow them to be used, in whole or in part for any
purpose other than that which is stated in clause 2 of this
agreement.



5.8. Ensure
that no act, matter or thing whatsoever, shall be done or permitted
to be done which may cause or lead to pollution of the environment or
result in the creation of any hazard to health of other persons or
become an annoyance/discomfort or nisance to or damage or in any way
interfere with the peace and comfort of persons and/or adjoining
properties in the neighbourhood.



5.9. Cooperate
with Royal Swaziland Police, Municipal Police or other security
personnel in promotion of order and public safety.



5.10. Prevent
vandalism of facility by public transport personnel.



5.11. Provide
personnel (marshals) to assist RSP and Municipal Police in
enforcement of law and order within the facility, who shall in
execution of their duties be subordinate to the RSP.



5.12. Ensure
the appropriate use of entrance and exit routes as approved by
Council.



5.13. Ensure
payment of user fees to Council when and if instructed to assist in
the upkeep and maintenance of the faicility."






[7] Clause 6 vests
the management of the said facility on the 1
st
Respondent
and provides as follows:











"MANAGEMENT



The authority
to manage the operations of the facility will vest on the
Association, which shall comply with such reasonable rules and
regulations as are laid down by Council in terms of the Municipal
Legislation"






[8] The 1st
Respondent has failed to carry out its obligations in terms of clause
5 and 6 of the Memorandum of Understanding in and has also failed to
state before this Court why they have failed to do so.



[9] The 2nd
Respondent is a member of the 1
st
Respondent and is also governed by the terms and conditions of the
Memorandum of Understanding.






[10] Counsel for
the 2
nd
Respondent has raised certain points
in
limine
namely
:







"1. The
Memorandum of Agreement between the parties does not give rise to any
obligations to be fulfilled by the 2
nd
Respondent
in that,



1.1. The said
Memorandum of Agreement although in existence and binding between the
parties has not yet come into effect or has not commenced in its
operation as there is no commencement date inserted therein in terms
of clause 3.



1.2. There is
in terms of clause 17 of the Memorandum of Agreement a suspensive
condition, which has not yet taken place to give effect to the
operation of the Memorandum of Agreement.







To the extent
of 1.1 and 1.2 above the Memorandum of Agreement is not effective and
therefore Applicant cannot demand performance of the terms therein.







2. The intended
removal of the 2
nd
Respondent by the Applicant from the Old Bus Rank is unlawful and
ultra vires the urban Government Act 8/1969 and its Bye-Laws read
together with the Road Traffic Act in that,



2.1. The
peremptory procedure laid down in section 3 of the Public Service
vehicles Bye-Laws 1970 have not been fulfilled and therefore any
actions by the Applicant to the contrary are unlawful and beyond the
four comers of the enabling statute.







The Applicant
has further failed to establish in its papers to establish the
requirements of an interim interdict."







[11] The points in
limine
in
my view fall to be decided under clause 15 of the Memorandum of
Understanding which is the Arbitration clause and not by this Court.
Clause 15 provides as follows:











"ARBITRATION



15.1. This
agreement shall be executed by the parties in good faith;



15.2. Any
dispute, differences, impasse or deadlock between the parties
relating to this agreement or validity or meaning or rights and
obligations of the parties, rectification of default, termination and
compensation arising thereof must be referred to arbitration in terms
of the Arbitration Act."












[12] This Court
has jurisdiction however to intervene where it is obvious that law
and order has broken down and the lives of the public are endangered.






[13] I am
satisfied that the requirements of an Interdict have been met and
hereby grant:







a) The order
sought in terms of prayersl, 2, 3, 3.1, 3.2, 3.3, 3.4, 4 and 5.


b)
That a rule nisi hereby issue returnable on the 28/7/06.


c)
That the Respondent may anticipate the return date.



d) That costs are
hereby reserved.







Q.M.
MABUZA -AJ