Bochabela Transport Operation V The Road Transport & 3 Others (CIV/APN/0020/2025ND) [2025] LSHC 246 (6 August 2025)

# Bochabela Transport Operation V The Road Transport & 3 Others (CIV/APN/0020/2025ND) [2025] LSHC 246 (6 August 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/246/eng@2025-08-06) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/246/eng@2025-08-06) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2025/246/eng@2025-08-06) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2025/246/eng@2025-08-06) [ __](mailto:?subject=Take a look at this document from LesLII: Bochabela Transport Operation V The Road Transport …&body=https://lesotholii.org/akn/ls/judgment/lshc/2025/246/eng@2025-08-06) [ Download PDF (473.4 KB) ](/akn/ls/judgment/lshc/2025/246/eng@2025-08-06/source) Report a problem __ * Share * [ Download PDF (473.4 KB) ](/akn/ls/judgment/lshc/2025/246/eng@2025-08-06/source) * * * * * Report a problem __ ##### Bochabela Transport Operation V The Road Transport & 3 Others (CIV/APN/0020/2025ND) [2025] LSHC 246 (6 August 2025) Copy citation * __Document detail * __Related documents * __Citations 10 / - Citation Bochabela Transport Operation V The Road Transport & 3 Others (CIV/APN/0020/2025ND) [2025] LSHC 246 (6 August 2025) Copy Media Neutral Citation [2025] LSHC 246 Copy Hearing date 3 June 2025 Court [High Court](/judgments/LSHC/) Case number CIV/APN/0020/2025ND Judges [Dr. Shale J](/judgments/all/?judges=Dr.%20Shale%20J) Judgment date 6 August 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Administrative Law](/taxonomy/case-indexes/case-indexes-commercial-administrative-law) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **HELD AT LERIBE CIV/APN/0020/2025ND** **In the matter between:** **BOCHABELA TRANSPORT OPERATION APPLICANT** VS **THE ROAD TRANSPORT BOARD 1 ST RESPONDENT ** **THE PRINCIPAL SECRETARY** **MINISTRY OF PUBLIC WORKS** **AND TRANSPORT 2 ND RESPONDENT** **THE ATTORNEY GENERAL 3 RD RESPONDENT** **__________________________________________________________________** Neutral citation: Bochabela Transport v The Road Transport Board [[2025] LSHC 227](/akn/ls/judgment/lshc/2025/227) CIV/APN/0020/2025ND (03 June 2025) **CORAM: DR I. SHALE J** **HEARD : 03 June 2025** **DELIVERED : 6 August 2025** **_SUMMARY_** **_Administrative law & Civil Practice_** _: Interdict against Road Transport Board from holding a public hearing pursuant to the Road Transport Regulations, 2004 – Applicant further seeking a declaratory order against the actions of the Road Transport Board – Applicant consequently seeking a writ of mandamus against the public functionary – Respondents raising preliminary objections as to lack of urgency, non-joinder and failure to exhaust local remedies - In the merits, the Respondents contending that Applicant has failed to establish the requirements for an interim interdict – Application considered and accordingly dismissed._ **_ANNOTATIONS_** **_Cited Cases_** **_Lesotho:_** * _Attorney General & Another v. Swissbourgh Diamond Mines (Pty) Ltd & Others_ 1995 – 1996 LLR & LB 173 at page 182; * _Jonathan v. Lephole_ (C of A (CIV) No. 5 of 2018) [[2018] LSCA 4](/akn/ls/judgment/lsca/2018/4) (7 December 2018) * _Lesotho District of the United Church v. Rev. Moyeye and Others_ LAC (2007 – 2008) 103 * _Lints’a v. Mahloko & Others_ (CIV/APN/254/2001) [[2001] LSCA 52](/akn/ls/judgment/lsca/2001/52) (27 August 2002) * _LNDC v. LNDC Employees and Allied Workers Union LAC_ (2000-2004) 315 * _Makgothi v. Aucor Lesotho_ (CCT/0326/2021) [[2022] LSHC 5](/akn/ls/judgment/lshc/2022/5) (12 February 2022) * _Makoala v. Makoala_ (C of A (CIV) No.4 of 2009) [[2009] LSCA 3](/akn/ls/judgment/lsca/2009/3) (9 April 2009) * _Matime and Others v. Moruthoane and Another_ LAC (1985 – 1989) 198 * _Molibeli v. The Prime Minster_(CIV/APN/10/2020) [[2020] LSHC 8](/akn/ls/judgment/lshc/2020/8) (12 March 2020) * _Motlatsi Mofokeng v. Commissioner of Police and 2 Others_(CIV/APN/375/2020) [[2021] LSHC 40](/akn/ls/judgment/lshc/2021/40) (22 April 2021) * _Nalane (Nee Molapo) and Others v. Molapo and Others_ (C of A (CIV) No. 10 of 2008) [[2008] LSCA 25](/akn/ls/judgment/lsca/2008/25) (17 October 2008) * _Phafoli v. Professional Liquidators of MKM Star Lion_ C of A (CIV) No. 11 of 2017 [[2018] LSCA 6](/akn/ls/judgment/lsca/2018/6) * _Principal Secretary, Ministry of Local Government and Others v. Seleso_(C of A (CIV) No. 11 of 2022) [[2022] LSCA 36](/akn/ls/judgment/lsca/2022/36) (11 November 2022). * _Professional Logistics International (Pty) Ltd v. The Minister of Trade and Industry_ (CIV/APN/326/2020) [[2021] LSHC 2](/akn/ls/judgment/lshc/2021/2) (18 February 2021] * _Selemela Construction (Pty) Ltd v. Road Fund & 2 Others _CCA/0084/2021 [[2021] LSHC 136](/akn/ls/judgment/lshc/2021/136) Comm (26 November 2021 * _Smally Trading Co t/a Smally Uniform & Protective Clothing v. Lekhotla Matsaba & 10 Others_ C of A (CIV) No. 17 of 2016;**** **_South Africa:_** * _Commissioner SARS v. Hawker Air Services (Pty) Ltd_ 2006 (4) SA 292 (SCA) * _Eriksens Motors (Welkom) (Pty) Ltd v. Protea Motors_ (Warrenton) 1973 (3) SA 685 (A) * _Henri Viljoen (Pty) Ltd v. Awerbuch Brothers_ 1953 (2) SA 151 (O) **_Legislation:_** * Road Transport Regulations, 2004 * Road Transport Act, 1981 * High Court Civil Litigation Rules, 2024 * Practice Direction No.2 of 2024 on Urgent Applications **_JUDGMENT_** **INTRODUCTION** [1] In pursuance of its quest to stop a public hearing organized by the Road Transport Board, the First Respondent herein, scheduled for the 3rd June 2025 the Applicant brought an application to this Court as a matter of urgency on the 30th May 2025. This application was intended to be moved on the 2nd June 2025, that is a day preceding the date of the meeting. It is imperative to mention at the outset that Applicant is described in the Founding Affidavit as an association and registered society which is said to be the mother body comprising of smaller associations of public transport operations in the northern regions of Lesotho. [2] The prayers sought in the Notice of Motion were couched in the following terms: “1. An order dispensing with the mode and periods of service of court process prescribed by the Rules of Court on account of urgency. 2\. That a _Rule Nisi_ be issued returnable a date and time to be determined by this Honourable Court calling upon the Respondents to show cause, if any, why the following orders cannot be made final. 1. An order interdicting the 1st Respondent from holding a public hearing scheduled on the 2nd June 2025 concerning the allocation of new routes and issuing of E permits in the northern region pending the determination of this application. 3. An order declaring as irregular the intended public hearing scheduled to the 3rd June 2025 for failing to comply with the mandatory provisions of Road Transport Regulations 2004 regarding publication of the notice of the hearing and time as provided under Road Transport Regulations 2 (2) and (3); _consequently_ 4. An order interdicting the 1st Respondent to proceed and hold a public hearing as intended. 5. An order declaring the 1st Respondent refusal to release the report of the pilot project of Maseru to Mokhotlong and Mokhotlong to Maseru direct route as irregular and wrongful; _consequently_ 6. An order compelling the 1st Respondent to release the report of the pilot project of Maseru to Mokhotlong and Mokhotlong to Maseru direct route within 21 days of granting of the order. 7. Costs of suit. 8. Further and or alternative relief. 9. That prayers 1 and 2 (a) operate with immediate effect as Interim Orders of this Honourable Court.” [3] As shown above, the application was brought to this Court on an urgent basis and it came before me while I was on motion court on the 2nd June 2025. The Respondents had already filed their Notice of Intention to Oppose as well as the Answering Affidavit. The parties’ representatives appeared before me in the morning and requested to have a discussion on possible resolution of the matter. Advocate Molapo indicated that if the outcome of their discussion is in the negative then he will file a Replying Affidavit and persuade the Court to grant the interim reliefs. It is then that I stood down the matter to 14:00hrs. [4] In the afternoon the parties’ representatives once again appear before me and reported that they have not been able to break an agreement hence they intend proceeding with the matter. Advocate Molapo also confirmed that he had just served and filed a Replying Affidavit. At the material time I had not seen this affidavit. I then postponed the matter to the following morning to give myself the opportunity to read all the pleadings filed. The matter accordingly proceeded with argument holistically by consent of the parties on the morning of the 3rd June 2025. [5] After hearing arguments from the representatives of the parties, both on the points _in limine_ and the merits, this Court dismissed the application and promised to give reasons at a later stage since I was still dealing with the urgent motion court. What follows here are the reasons for my judgment. **APPLICANT’S CASE** [6] The gist of the Applicant’s case is that sometime in March 2024 the First Respondent called a public hearing in which there was a discussion about creation of a direct route for passenger vehicles travelling from Mokhotlong to Maseru and back. A pilot of this route was then set up and ten operators were given permits in order for the First Respondent to make a trial and assess viability of this route. The Applicant asserts that it expected a report to be given by the First Respondent at the expiry of the trial period and before the route could be officially opened. It is Applicant’s case that no such report was ever issued. Instead on the 27th May 2025 Applicant’s members learnt that the First Respondent had issued a notice calling for a public hearing on the 3rd June 2025. [7] The agenda for the public hearing was, _inter alia_ , issuance of operating permits on the Mokhotlong to Maseru direct route as well as issuance of E permits to catch-a-ride operators. It is Applicant’s case that it is irregular and dereliction of duty on the part of the First Respondent to open applications for additional operators on the said route while it has not issued a report on the pilot project meant to assess suitability of the route. Applicant asserts that the First Respondent has already made a decision without taking into account the concerns of relevant stakeholders working on the concerned route as required by the law. [8] Applicant’s case does not end there; it is alleged in the papers that there is a low frequency of passengers commuting directly from Mokhotlong to Maseru and vice versa. This can be seen from frequent clashes over passengers between operators of Botha-Bothe and Mokhotlong route, Botha-Bothe and Maseru route via Hlotse, Maputsoe and TY route. They argue that while it could be anticipated that with huge industries like Polihali LHDA project and the mines in Mokhotlong there will be significant passengers, this is not the case as companies procure private transport for their employees. The recent catch-a-ride phenomenon has added to the challenge. [9] The Applicant further challenges the holding of the public hearing on the ground that there has not been publication of the hearing in a government gazette as required by the Regulations. Further that the notice has not complied with the 21 days period as mandated by the Regulations. It is alleged that these irregularities rendered the hearing null and void. It is for the above reasons that Applicant has approached this Court for an interdict, declaratory order as well as a writ of mandamus compelling the First Respondent to issue out a report of its findings on the viability of the Mokhotlong to Maseru direct route before granting permits to new entrants on the route. **RESPONDENTS’ CASE** [10] In addition to pleading over, the Respondents raised four (4) points _in limine_ in their answering affidavit, namely: (a) lack of urgency in that Applicant failed to set out explicitly circumstances rendering the application urgent as the notice for the public hearing was issued as far back as the 2nd May 2025; (b) there was non-joinder of other permit holders who have a direct and substantial interest in the sitting to be held on the 3rd June 2025; (c) the application is premature since the First Respondent will hear all the concerns in the public hearing; and (d) failure to establish the requirements of an interdict sought. [11] On the merits the Respondents denied that Applicant ever sought the report for the pilot project. They averred that they could have gladly furnished the report had it been requested. In any event, the First Respondent never promised to furnish anybody with the said report. It piloted the project with five (5) operators who were issued with permits and only one (1) operator was still operating hence it was found that the route was not viable. The main reason being low number of commuters from Mokhotlong to Maseru and vice versa. [12] The Respondents pleaded further that they were not aware of the alleged clashes since there were none or at the very least none were reported to them. They sought to put the record straight that the short term permits that were issued only related to c-permit operators who were given those during the festive season rush and the purpose was to alleviate the congestion which the Applicant’s members could not handle. They were valid from the 25th December 2024 to the 10th January 2025. [13] On the issue that the public hearing is null and void for failure to comply with the notice period mandated by the Regulations, the Respondent argued that the point is misconceived since the meeting of the 3rd June 2025 is just a postponement of a meeting initially intended to be held on the 19th May 2025. The latter meeting was duly gazetted as required by the Regulations. It only got postponed due to logistical hiccups especially the issue of a venue. They annexed a copy of the gazette to their affidavit. They pleaded that the postponement was announced at the venue, over Radio Lesotho and other media platforms. They therefore denied that it was only on the 27th May 2025 that the Applicant knew of the meeting of the 3rd June 2025. [14] The Respondent denied that the agenda of the meeting was only in relation to new applications to the route at issue. They pleaded that the agenda included new applications, new routes as a result of recently constructed and completed roads such as Mononts’a etc. They contended that the entire meeting could not be halted simply because Applicant fears that certain permits were going to be discussed to the prejudice of other classes of permits which do not concern the Applicant’s members. It was their contention that in any event Applicant still has the opportunity to object or raise concerns in the meeting. The whole purpose of the meeting is to gather objections, concerns and views of all interested parties including the public. A decision is only made after gathering all the above factors. They therefore asked this Court to dismiss the application with costs. **ISSUES FOR DETERMINATION** [15] The salient issues for determination by this Court in this matter can conveniently be classified as follows: (a) Whether this matter warrants urgent intervention of this Court; (b) Whether there is non-joinder of interested parties; (c) Whether the application is prematurely lodged before this Court. This assessment will touch on the merits of the application since it will necessitate consideration of whether the requirements of the interdict sought have been fulfilled. [16] I propose to deal first with the preliminary objections raised _in limine_ to determine whether they are meritorious. The latter part of this judgment will consider the point as to whether the application is prematurely lodged in this Court as well as the merits of the application because the two are interwoven. **URGENCY** [17] The law is now settled in this Kingdom that urgency pertains to abridgement of the rules of the court sensitive to the peculiar circumstances of the case warranting such an abridgement; see the judgment in **LNDC v. LNDC Employees and Allied Workers Union LAC**.[1] This necessarily means that urgency is procedural in nature and does not deal with the substance of the case as stated in **Commissioner SARS v. Hawker Air Services (Pty) Ltd** _.**[2]**_ In this jurisdiction, the procedure for obtaining urgent relief has been under tremendous abuse by litigants and their legal representatives hence the Chief Justice issued Practice Direction No.2 of 2024 on urgent applications. Section 1 of this Practice Direction states as follows: _[1] Experience teaches that the procedure on urgency continues to be the most abused. Legal practitioners are over-optimistic or reckless in their assessment of the requirements of urgency set out in the High Court Civil Litigation Rules 2024 Part 9 Rule 72 and will attempt to use the urgency procedure to jump the queue to their client’s advantage._ [18] Abuse of urgent procedures has also been a subject of a litany of cases both by this Court and the Court of Appeal of Lesotho where litigants were admonished against abuse of this procedure. There is no need to cite these cases herein. It is clear from this case law that because urgency has nothing to do with the merits of the case, once it is determined that the matter is not urgent the appropriate order to make is not dismissal of the application but to strike the matter of the Urgent Roll with an appropriate order as to costs, including punitive costs (this can also be seen in the seminal case of **Commissioner SARS v. Hawker Air Services (Pty Ltd above at paragraph 9).** It is for this reason that Rule 72 (7) of the High Court Civil Litigation Rules 2024 (hereinafter referred to just as the “Rules of Court”) provides that an application which has been dismissed for lack of urgency may be set down in the normal course as opposed motion. [19] The requirements to be satisfied by a litigant who requests an urgent intervention of this Court have been set out explicitly by Rule 72 (6) of the Rules of Court. For our purposes in this matter, it is imperative to set out the full text of this Rule. It provides as follows: _(6)Every urgent application shall be supported by an affidavit in which affidavit the applicant shall set out explicitly:_ 1. _The circumstances which he avers render the matter urgent;_ 2. _The reasons which he claims he could not be afforded substantial redress at a hearing in due course; and_ 3. _Be accompanied by a certificate of an advocate or attorney which set out that he has considered the matter and for stated reasons bona fide believe it to be a matter for urgent relief._ [20] The Practice Directions further give aid to the courts for an assessment of whether or not a matter warrants urgent intervention. Under section 3 it provides the following controls for assessment of urgency: 1. Demonstrable justification of urgency. 2. Whether the urgency is self-created. 3. Consequences of the relief not being granted; and 4. Whether the relief would be irrelevant if it is not immediately granted. [21] I now revert to the facts of the present case to determine whether on the founding papers filed of record there is a demonstrable measure of urgency. Advocate Molise on behalf of the Respondents had argued strongly, relying on the authority of **Phafoli v. Professional Liquidators of MKM Star Lion** that the Applicant has failed to state explicitly the circumstances which render its application urgent.[3] He argued further that Applicant has not in the papers stated reasons why it claims it cannot get a substantial relief in due course. He contended that on the facts the meeting was publicized on the 2nd May 2025 as it was due to proceed on the 19th May 2025 but when there was need to postpone it due to logistical reasons there was a public announcement over Radio Lesotho and other media houses about the new date of the 3rd June 2025. The Applicant ought to have known about this new date. He thus submitted that the application ought to be dismissed on that score alone. [22] On the contrary, Advocate Molapo argued that it is undisputed that the Applicant became aware of the intended public hearing on the 27th May 2025 and further that such a hearing was scheduled to be held seven (7) days later on the 3rd June 2025. He argued therefore that the service of the application under Rule 65 (1) (c) of the Rules of Court would have rendered the application moot as it would have placed the application to be heard long after the meeting would have taken place. He referred this Court to the judgment of the late Hlajoane J. in **Lintsa v. Mahloko & Others**.[4] [23] As indicated in paragraphs [19] and [20] of this judgement, where an applicant has approached the Court on urgent basis its founding papers must meet a certain threshold to enable the application to jump the queue of cases awaiting their turn in Court. At paragraph 12 of the founding affidavit the Applicant alleges that it became aware of the upcoming public hearing scheduled for the 3rd June 2025 on the 27th May 2025 through some members of the First Respondent. Conversely, at paragraph 8 of the opposing affidavit the Respondents contest the Applicant’s averments in that it ought to have been aware of the postponement of the meeting to the 3rd June 2025 since it was publicized over Radio Lesotho and other media platforms. What is clear from the Respondent’s averments is that they do not dispute that the Applicant were not aware of the postponement as a matter of fact. Their denial is based on the assumption that the Applicant should have heard from the radio station that the meeting was postponed to the 3rd June 2025. [24] On the pleaded facts it cannot be seriously disputed that the Applicant became aware of the new date of the meeting on the 27th May 2025. Even if I am wrong on this conclusion, I still find that the Applicant acted within a reasonable time to approach this Court for intervention. The new notice, in terms of annexure VTM2 to the answering affidavit, was made on the 23rd May 2025. The Applicant then filed the application in Court on the 30th May 2025. This Court takes judicial notice of the fact that before the application is filed in Court the Applicant had to instruct an attorney who would then have to consult thoroughly and prepare the papers. This also takes some time. As indicated above, I find the period within which the Applicant approached the Court to have been reasonable. [25] This Court is inclined to agree with the Applicant that it could not be afforded substantial relief at a hearing in due course since the very harm that Applicant wanted to forestall would have unfolded to finality. Delay in entertaining the matter would render the reliefs sought to be irrelevant. On the papers before me there is a demonstrable justification of urgency hence this Court dismissed the preliminary objection of lack of urgency. [26] I now turn to consider the next preliminary objection as to non-joinder raised by the Respondents. Advocate Molise argued that it is trite that all parties who have a substantial interest in a matter should be cited especially when they will be affected by the order sought. He contended that all categories of permit holders ranging from A, B, C and E in the northern region have an interest in the matter since some of them have their permits already expired. He therefore urged this Court to dismiss the application on that score. [27] Advocate Molapo on behalf of the Applicant submitted that the Respondent’s point is ill-conceived and lacks the necessary and sufficient factual particularity in that it has not identified the persons or entities which will be affected by the orders sought and how they will be affected. He relied on the judgement of the Court of Appeal of Lesotho in **Makoala v. Makoala** to argue that non joinder of a party might not inevitably entail dismissal of the application but it depends on the circumstances of each case.[5] The Court may take other steps such as permitting the matter to stand down to enable notice to be given to interested parties. [28] It is indeed true that it is a fundamental rule of our civil practice that where a party has a direct and substantial interest in the litigation such a party ought to be joined in such proceedings. Authorities are legion on the subject (see all the judgements cited at paragraph [16] of the judgement in **Lesotho District of the United Church v. Rev. Moyeye and Others**).[6] The courts of the land, up to the apex court (see _Matime and Others v. Moruthoane and Another LAC (1985 – 1989) 198 at 200A_), have repeatedly held that: “This (non-joinder) is a matter that no Court, even at the latest stage in proceedings, can overlook, because the Court of Appeal cannot allow orders to stand against persons who may be interested but who have had no opportunity to present their case.” [29] There are however instances where non-joinder was found by the Court to be inconsequential or speculative (see: **Principal Secretary, Ministry of Local Government and Others v. Seleso**).[7] In some instances, where the Court realizes that a third party might be affected it can exercise its discretion by directing that such a party be joined or the proceedings be brought to his/her attention (see the sentiments expressed in **Jonathan v. Lephole.**[8]**** [30] The test to determine whether there is a non – joinder is as expressed by my brother Mathaba J. at paragraph 13 of his judgment in **Makgothi v. Aucor Lesotho** (though he expressed them in a context of a misjoinder but the principle is similar) where he stated that: _The test to determine whether there is a misjoinder is whether or not a party has a direct and substantial interest in the subject of the action, that is, a legal interest in the subject matter of the litigation which may be affected prejudicially by the judgement of the court: see Henri Viljoen (Pty) Ltd v. Awerbuch Brothers 1953 (2) SA 151 (O) at 168 – 170._[9] [31] As shown in the preceding paragraphs the Respondents only made a general and speculative assertion that the Applicant failed to join “other associations which their members hold, A, B, C and E permits which have a direct and substantial interest in the sitting to be held on the 3rd June 2025 …” (see answering affidavit paragraph 2 (b). The Respondents have not only made a speculative assertion but also failed to identify the said associations and state their legal interest in the subject matter of the litigation. This Court is thus left in the dark as to what interest, in the legal sense, they have in the outcome of this application as well as the prejudice they are bound to suffer should the proceedings go ahead without their joinder. As a result, this Court has not been persuaded to accede to dismissing this application on account of non-joinder of parties with a direct and substantial interest. **IS THE APPLICATION PREMATURELY BEFORE COURT** [32] I now turn to consider the above point and propose to deal with it together with the merits of the present application since its consideration is intertwined or interwoven with the merits. In this application the Applicant primarily seeks an interim interdict, a declaratory order as well as a writ of mandamus. The Respondents argued that the application is premature because the Road Transport Regulations, 2004 guarantees the rights of interested parties to ventilate their views in a public hearing/sitting with regard to objections on applications for granting of licenses or establishment of new routes. The First Respondent is then obliged by the Regulations to consider such views and objections in making its decisions. It is the Respondents case that instead of coming to court the Applicant ought to have exhausted this available remedy first. [33] In counter to the above arguments Advocate Molapo on behalf of the Applicant argued that there is no legislative instrument cited by the Respondents which provides an internal remedy mechanism before the Applicant could approach courts of law. He contended that the jurisdiction of this Court is not ousted. More especially when the First Respondent decided to call a public hearing in contravention of the Regulations relating to the notice period. He argued that there is no merit in the point and relied on the judgment of my brother Mokhesi J. in **Professional Logistics International (Pty) Ltd v. Minister of Trade and Industry** quoting particularly paragraph 7 thereof.[10] On the merits he argued that Applicant has satisfied all the requirements of an interim interdict which were well articulated by Mokhesi J. in **Motlatsi Mofokeng v. Commissioner of Police and 2 Others) at paragraph 9** thereof.[11] He therefore submitted that the Applicant has made a good case. [34] It is imperative to kickstart interrogation of the above issues with consideration of the provisions of the Road Transport Regulations, 2004. Regulation 2 provides that the Board shall for purposes of hearing and determining applications in terms of the parent Act (Road Transport Act, 1981) shall hold public sitting once in three (3) months. A further provision worth considering is Regulation 4 which is quoted verbatim herein below and it provides as follows: _4\. (1) All interested parties may be present at a public sitting of the Board and**be heard by the Board**._ _(2) Where objections to an application are made, the applicant shall be provided with an opportunity to reply._ _(3)**The Board shall take into consideration any representation or objection when considering an application** made under these regulations_. (my emphasis) [35] Regulation 5 of the same Regulations provides as follows: _5\. The board shall, in exercising its discretion to grant or refuse an application for a permit take into consideration the following –_ 1. _where the applicant is the holder of an existing permit, the previous conduct of the applicant as a carrier of goods or passengers;_ 2. _where the applicant is the holder of an existing permit of the same class, the possibility of providing him with an opportunity to expand his services;_ 3. _the number and type of vehicles proposed to be used under the permit and suitability of the route or area proposed for such services;_ 4. _the extent to which other transport services might be adversely affected by the grant of the permit;_ 5. _the public interest including the interests of persons requiring transport, as well as persons providing facilities for transport._ [36] I have quoted the above provisions at length because I find that they have provided an answer to the pertinent issues in this matter. The scheme of the Road Transport Act, 1981 read with the Road Transport Regulations, 2004 is such that they provide a safety valve to guard against arbitrary issuance of road transport permits and allocation of new routes hence they oblige the First Respondent to hold public sittings/hearings wherein members of the public and persons providing facilities for transport as well as applicants for road transport permits can deliberate on suitability of issuance of permits on particular routes and to particular persons. [37] As shown in the above quoted Regulation 4 it is obligatory for the First Respondent to invite and hear all interested persons to a public sitting/hearing. The Regulation further obliges the First Respondent to take into consideration representations and objections when considering an application for a permit and/or suitability of a particular route. This is a proper and open platform where every interested citizen, including the Applicant herein, is entitled to appear and raise any concern it has with regard to issuance of road transport permits or opening or allocation of a particular route. [38] Having found that the law provides a platform for the Applicants to ventilate their concerns, the next question is whether the Applicants have satisfied the requirements of the interim interdict sought. The requisites for the granting of an interim interdict are now trite. They have been laid down time and again by the Courts in this Kingdom. They have in particular been reiterated by the Court of Appeal of Lesotho as well as this Court in a plethora of cases (see for instance **Smally Trading Co t/a Smally Uniform & Protective Clothing v. Lekhotla Matsaba & 10 Others**;[12]**Attorney General & Another v. Swissbourgh Diamond Mines (Pty) Ltd & Others****;**[13]****__**Molibeli v. The Prime Minster).**[14]**** [39] Without having to unnecessarily spend much time on this aspect of the case it is however important for emphasis to show that in the case of an interim interdict such as the present, the requirements may be summarised as follows: (a) a _prima facie_ right, though open to some doubt; (b) a well-grounded apprehension of irreparable harm if interim interdict is not granted and the final relief is eventually granted; (c) the balance of convenience favours the granting of the interim interdict; and (d) the absence of any other satisfactory remedy [40] The authorities are clear that the above requisites should not be assessed “separately or in isolation” but in conjunction with one another. In **Selemela Construction (Pty) Ltd v. Road Fund & 2 Others****,**[15]**** my brother Mathaba J. quoted with approval the judgement in******Eriksens Motors (Welkom) (Pty) Ltd v. Protea Motors (Warrenton)**__ where the Court said the following with reference to these requirements: _The foregoing considerations are not individually decisive, but are interrelated; for example, the stronger the applicant’s prospects of success the less his need to rely on prejudice to himself. Conversely, the more the element of ‘some doubt’, the greater the need for the other facts to favour him. The Court considers the affidavit as a whole, and the interrelation of the foregoing considerations according to the facts and probabilities … Viewed in that light, the reference to a right which, ‘though prima facie established, is open to some doubt’ is apt, flexible and practical and needs no further elaboration.**[16]**_ [41] I am in respectful agreement with the above sentiments. However, in a case of an interim interdict such as the present, the “threshold test” has with the development of our law shifted from “prima facie right” that it used to be. The “balance of convenience” has since been elevated to being the “core test” (see **Attorney General & Another v. Swissbourgh Diamond Mines (Pty) Ltd & Another****.**[17]) In casu, I was not satisfied that the Applicant had established that it did not have another satisfactory remedy. At paragraph 24 of the founding affidavit, it was merely stated that the “Applicant has no other alternative but to approach this Honourable Court as it has done seeking the reliefs as outlined in the Notice of Motion” without further elaboration. I have already discussed in the preceding paragraphs that the Road Transport Regulations provide a platform where the Applicant can raise whatever concerns it has. The balance of convenience therefore does not favour granting of the interim interdict sought in this case. **CONCLUSION** [42] In the light of the considerations and reasons advanced in this judgment I have come to the conclusion that Applicant has not made a good case for the granting of the interim interdict sought as well as the ancillary reliefs. The harm that the Applicant is seeking to forestall through these proceedings can still be adequately addressed in the public hearing/sitting organized by the First Respondent where all interested parties and members of the public are invited to attend. Similarly, I find no reason why the Applicant does not want to attend the said sitting in order to ventilate its concerns on behalf of its members. The Applicant has therefore approached this Court prematurely. On the issue of costs, I find that both parties have achieved success in this application. The Applicant has successfully thwarted the points _in limine_ raised by the Respondents while the latter have succeeded in the merits. This Court therefore finds that there will be no reason to award costs against either of the parties. **ORDER** [43] In the result, the following order is made: The application be and is hereby dismissed and there is no order as to costs. **_________________** **Dr. I. Shale J** **Judge of the High Court** For Applicant: Advocate L. E. Molapo For Respondents: Advocate T. Molise * * * [1] _LNDC v. LNDC Employees and Allied Workers Union_ LAC (2000-2004) 315 at 325) [2] _Commissioner SARS v. Hawker Air Services (Pty)_ Ltd 2006 (4) SA 292 (SCA) at paragraph 9 thereof) [3] _Phafoli v. Professional Liquidators of MKM Star Lion_ C of A (CIV) No. 11 of 2017 [[2018] LSCA 6](/akn/ls/judgment/lsca/2018/6) [4] _Lintsa v. Mahloko & Others _(CIV/APN/254/2001) [[2002] LSHC 52](/akn/ls/judgment/lshc/2002/52) (27 August 2002) [5] _Makoala v. Makoala_ C of A (CIV) No.4 of 2009 [[2009] LSCA 3](/akn/ls/judgment/lsca/2009/3) (9 April 2009) [6] _Lesotho District of the United Church v. Rev. Moyeye and Others_ LAC (2007 – 2008) 103 at 109 [7] _Principal Secretary, Ministry of Local Government and Others v. Seleso_(C of A (CIV) No. 11 of 2022[[2022] LSCA 36](/akn/ls/judgment/lsca/2022/36) (11 November 2022) [8] _Jonathan v. Lephole_(C of A (CIV) No. 5 of 2018) [[2018] LSCA 4](/akn/ls/judgment/lsca/2018/4) (7 December 2018) [9] _Makgothi v. Aucor Lesotho (CCT/0326/2021)[[2022] LSHC 5](/akn/ls/judgment/lshc/2022/5) (12 February 2022_) [10] _Professional Logistics International (Pty) Ltd v. Minister of Trade and Industry_(CIV/APN/326/2020) [[2021] LSHC 2](/akn/ls/judgment/lshc/2021/2) (18 February 2021) [11] _Motlatsi Mofokeng v. Commissioner of Police and 2 Others_(CIV/APN/375/2020) [[2021] LSHC 40](/akn/ls/judgment/lshc/2021/40) (22 April 2021) [12] _Smally Trading Co t/a Smally Uniform & Protective Clothing v. Lekhotla Matsaba & 10 Others _C of A (CIV) No. 17 of 2016 [13] _Attorney General & Another v. Swissbourgh Diamond Mines (Pty) Ltd & Others _1995 – 1996 LLR & LB 173 at page 182 [14] _Molibeli v. The Prime Minster_(CIV/APN/10/2020) [[2020] LSHC 8](/akn/ls/judgment/lshc/2020/8) (12 March 2020) per Makara J at paragraph 40) [15] _Selemela Construction (Pty) Ltd v. Road Fund & 2 Others _CCA/0084/2021 [[2021] LSHC 136](/akn/ls/judgment/lshc/2021/136) Comm (26 November 2021) [16] _Eriksens Motors (Welkom) (Pty) Ltd v. Protea Motors (Warrenton)_ 1973 (3) SA 685 (A) at 691 (F) [17] _Attorney General & Another v. Swissbourgh Diamond Mines (Pty) Ltd & Another _(supra) at page 183) #### __Related documents ▲ To the top >