1 August 2007

Botswana: Is Seabelo's Gabs-Jo'burg Permit Legal?

Seabelo's Express was still travelling the Gaborone-Johannesburg route last week despite what appeared to be a revocation of their operating permit by the High Court on July 19, 2007.

In his decision, Justice Maruping Dibotelo stated: "The second respondent (the director of transport) is ordered and directed not to re-issue any P-permit or short term permit with regard to the said route to Seabelo Express or its nominee or agent before the whole applications and advertising procedures prescribed by the roads transport act are fully complied with.".

Delivering the judgement, Dibotelo said that the then director of transport, Moses Sebolao acted in contravention of the law and that his decision to grant Seabelo Express the permit was invalid and should be set aside.

TJ Motlogelwa's Express (PTY) LTD initiated the court action seeking review and setting aside of Seabelo's permit. He argued that the Seabelo's Express applied for a P-permit to operate a luxury coach on the Gaborone - Johannesburg via Lobatse and Johannesburg-Gaborone.

He stated that the application was published in the government gazette of January 24, 2003 pursuant to the provisions of regulation 4 of the road traffic regulations.

In that publication, Dibotelo indicated that notice was given that the application would be heard at a public sitting on February 18 and 19, 2003 at the National Stadium Conference room number one and that any persons who objected to the application to submit their objections to the director.

Dibotelo revealed that it is not in dispute that in May 2003 Seabelo's Express was granted the permit by the director to operate a bus service on the Gaborone - Johannesburg and Johannesburg - Gaborone route and that this route passed through Tlokweng and not via Lobatse according to the application.

The judge pointed out that TJ Motlogelwa's Express complained that the director grossly misdirected himself, unduly preferred Seabelo's Express and acted ultra vires the act in granting a permit on the basis of an application that was never heard by the transport advisory board at a public hearing.

According to Dibotelo, the director alleged that at the time there was no luxury coach serving the route and the chairman of the board advised him that if the permit was granted, "it could not include Lobatse as there was an intergovernmental agreement relating to border control that this kind of traffic use the Tlokweng border post. He alleged that he accepted the board's right to impose conditions on permitted routes even though such a limitation meant that Seabelo's Express could not take advantage of the Lobatse market".

Dibotelo judged that it was not true that the director was advised by the chairman of the board that if the permit was granted it could not include Lobatse. He sated that the reason why it must be believed that there was no public hearing is simply because there were no minutes to show that the hearing did in fact take place.

"I find it inconceivable that if there had been a hearing as contended by Seabelo's Express there would have been no minutes or some sort of records to show at the minimum that its director did appear to represent it at such a hearing," he said, adding that the conduct of the Attorney General and the director over the period of August 2005 to March 2007 when they failed to produce any semblance of a record despite court orders direction them to do so proved that there was no hearing.

The judge also pointed out that in amending the application for a new route that was not advertised showed that the director was not varying or amending an existing permit but was dealing with an application for a new permit.

"In these premises it follows that the decision of the director to grant the permission in question to Seabelo cannot be allowed to stand," Maruping said nullifying the permit.

The company was nevertheless granted a short-term permit on the same day, seemingly in contravention of the High Court decision.

A letter from state counsel, Moemedi Modisenyane, to transport director, Mmoshe Mookodi, advises that in his legal opinion the court order 'did not prevent Seabelo's Express from making a fresh application for the permit, including a short-term permit for the same route'.

Modisenyane also advised that the order 'did not prevent the transport director from receiving, considering and if satisfied that the provisions of the Act had been fully complied with, proceed and issue the permit'.

Modisenyane also met with the Deputy Minister of Works and Transport, Frank Ramsden, who later advised the transport department to deal with the application on the basis of the office of the Attorney General's advice.

Mookodi communicated with Modisenyane the following day seeking further clarification on the interpretation of the court order.

His concern was that at face value it was directed in the court order that the transport office was not to reissue a new permit or even a short-term permit.

Modisenyane repeated his earlier advice and undertook to furnish the director's office with written confirmation of their conversation for the record.

"We once again confirm having no doubt whatsoever that the advice given to the department is sound in law. Put in another way, the court order did not say that the controller cannot reissue permits, period," Modisenyane said.

He added that in granting the application the department had not fallen foul of the court order and in point of fact has complied fully with the terms of the court order.

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