Kweleta v George Municipality and Others

The applicant, Ntomboxolo Kweleta, is the registered owner of a Tata Indica motor vehicle. On 4 December 2023, her husband, Mr Tshuta, was driving the vehicle with four passengers (including a child) when he was stopped by a traffic officer, Mr Sibanda, in George. Mr Tshuta was transporting relatives to the George CBD to collect disability grants. Mr Sibanda observed the vehicle appearing overloaded, activated his blue lights, but the vehicle initially refused to stop, driving over a barrier line into oncoming traffic and failing to stop at a red traffic light. After stopping the vehicle, the four adult passengers informed Mr Sibanda they had each paid R14.00 for the trip. Mr Sibanda arrested Mr Tshuta for reckless and negligent driving and impounded the vehicle under the National Land Transport Act 5 of 2009 (NLTA) for operating a road-based public transport service without a valid permit. Mr Tshuta was issued a R2500 fine and charged with contravening section 50(1) read with section 90(1) of the NLTA. The vehicle was taken to the fifth respondent's impoundment yard. Despite representations made by the applicant, the vehicle was not released. The applicant approached the High Court on an urgent basis seeking an order declaring the impoundment unconstitutional and unlawful and compelling the release of her vehicle. The respondents opposed the application, arguing the impoundment was lawful and the applicant had an alternative remedy of paying the impoundment fee to secure release. Criminal proceedings were pending in the Municipal Traffic Court set down for 25 January 2024.

• Whether the impoundment of the applicant's vehicle under section 87(1) of the National Land Transport Act 5 of 2009 was unlawful.
• Whether the respondents should be compelled to release and return the vehicle to the applicant.
• Whether the application was brought with sufficient urgency in terms of Rule 6(12) of the Uniform Rules of Court.
• Whether the applicant had an alternative remedy available that precluded urgent relief.
• Whether a personal costs order de bonis propriis should be granted against the applicant's attorney.

The application was dismissed. The applicant was ordered to pay the costs of the application, including the costs of the two counsel who appeared for the respondents.

For a lawful impoundment of a vehicle under section 87(1) of the National Land Transport Act 5 of 2009, four jurisdictional requirements must be satisfied: (a) the impounding officer must be an authorised officer as defined in the Act; (b) the officer must entertain a suspicion; (c) the suspicion must be based on reasonable grounds, measured objectively by whether a reasonable person in the same position with the same information would have considered there were sufficient grounds to suspect the vehicle was being used for public transport without a permit; and (d) the vehicle must be operated without the necessary operating licence or permit. The NLTA applies to any motor vehicle used for public transport, regardless of whether it is privately owned, and payment of a fare by passengers constitutes sufficient evidence to form a reasonable suspicion that the vehicle is being used for reward. Where an impoundment is lawfully effected and the applicant has an alternative remedy (such as paying the impoundment fee and challenging the impoundment later, or awaiting the outcome of pending criminal proceedings), an urgent application for release of the vehicle is not justified.

The court remarked obiter that making a declaration that the impoundment was unconstitutional and unlawful would have 'far-reaching consequences on the public of George, including other municipalities in our Country', suggesting that the relief sought was overly broad and not appropriate in motion proceedings. The court also observed that it was 'disconcerting' that the applicant sought such a declaration in urgent motion proceedings. On costs, the court stated that costs de bonis propriis is an extraordinary remedy reserved for cases where the legal representative has conducted themselves in a 'vexatious and reprehensible manner' and that this was not the case here, although the matter was unnecessarily brought on urgency.

This case provides authoritative guidance from the High Court on the interpretation and application of section 87(1) of the National Land Transport Act 5 of 2009, clarifying the four jurisdictional requirements that must be met before a vehicle may lawfully be impounded for operating public transport without a permit. It confirms that the NLTA applies to private vehicles when used for reward, not only to formal taxi operators, and that signed passenger statements and payment of fares can constitute reasonable grounds for suspicion. The judgment also reinforces the principle that urgent applications under Rule 6(12) will not succeed where the applicant has an alternative remedy, such as paying an impoundment fee and seeking reimbursement later. It further clarifies that the Municipal Traffic Court is the appropriate forum to determine whether a vehicle was used for public transport, given its ability to hear oral evidence.