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[2021] ZASCA 5
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Minister of Transport v Brackenfell Trailer Hire (Pty) Ltd and Others (707/2019) [2021] ZASCA 5; 2021 (1) SACR 463 (SCA) ; [2021] 2 All SA 72 (SCA) (14 January 2021)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 707/2019
In
the matter between:
THE
NATIONAL MINISTER
OF
TRANSPORT
APPELLANT
and
BRACKENFELL
TRAILER
HIRE
(PTY) LTD
FIRST RESPONDENT
PASCAL
CONSTANCE SPRAGUE
SECOND RESPONDENT
GERHARDUS
ADRIAAN ODENDAL THIRD
RESPONDENT
Neutral
citation:
Minister of Transport v Brackenfell Trailer
Hire (Pty) Ltd and Others
(707/2019)
[2021] ZASCA 05
(14 January
2021)
Coram:
PETSE DP, DAMBUZA and VAN DER MERWE JJA
and WEINER and GOOSEN AJJA
Heard
:
11 November 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email,
publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09H45
on 14 January 2021.
Summary:
Statutes – interpretation of – traffic offences –
s 73(1) of the National Road Traffic Act 93 of 1996 (the Act)
–
meaning to be ascribed thereto in relation to a trailer in tow –
whether a trailer towed by a self-propelled vehicle
as defined in s 1
of the Act is itself actually being driven – whether
presumption in s 73(1) of the Act applies to owner
of a trailer in
tow hired out to third parties.
ORDER
On
appeal from:
Western Cape Division of the High Court, Cape Town
(Binns-Ward J sitting as court of first instance):
judgment
reported
sub nom Brackenfell Trailer Hire (Pty) Ltd and others v
Minister of Transport
2019 (2) SACR 62
(WCC).
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Petse
DP (Dambuza and Van der Merwe JJA and Weiner and Goosen AJJA
concurring):
Introduction
[1]
Section 73(1) of the National Road Traffic Act 93 of 1996 (NRTA)
provides that where, in any prosecution
relating to the driving of a
vehicle on a public road, either in terms of the common law or in
terms of the NRTA, it is necessary
to prove who was the driver of
such vehicle, it shall be presumed, in the absence of evidence to the
contrary, that such a vehicle
was driven by the owner thereof.
Section 73(2) of the NRTA, in turn, provides that whenever a vehicle
is parked in contravention
of any provision of the NRTA, it shall be
presumed, in the absence of evidence to the contrary, that such
vehicle was parked by
the owner thereof. And, where the owner of the
vehicle is a corporate entity, s 73(3) provides that it shall be
presumed, in the
absence of evidence to the contrary, that the
vehicle concerned was, for purposes of subsecs (1) and (2), driven or
parked by a
director or servant of the corporate entity concerned in
the exercise of his or her powers or in the execution of his or her
duties
as such director or servant or in furthering the interests of
the corporate entity.
[2]
From the appellant’s perspective, the clear terms of s 73(1),
(2) and (3) occasion no undue hardships.
All that they provide for,
asserted the appellant, is an avenue of escape for the owner of the
‘offending’ vehicle
if he or she was not the driver at
the time when the driving or parking of the vehicle concerned
resulted in the commission of
the traffic offence(s) charged. Thus,
by virtue of s 73, the owner can escape prosecution by means of a
simple, convenient and
practical expedient of notifying the
authorities of the identity of the person who drove or parked the
vehicle at the time of the
commission of the offence(s). Not so,
protested the respondents in this appeal. For their part, the
respondents contended that
in their case drivers of vehicles towing
trailers hired out by them to third parties who are their customers
occasionally commit
traffic offences whilst towing their trailers.
When this happens, the traffic authorities prosecute them – as
owners of the
trailers – with the consequence that, on several
previous occasions, a number of warrants of arrest were issued
against them
with which they have had to contend. In addition, the
traffic authorities have, in the past, refused to issue renewal
licences
for their trailers or renew their driver’s licences
unless they paid all the outstanding fines imposed in respect of
their
trailers. As a result, they find themselves in an intolerable
predicament.
Litigation
history
[3]
Confronted with this dilemma, the first respondent, Brackenfell
Trailer Hire (Pty) Ltd, second respondent,
Ms Pascal Constance
Sprague, and third respondent, Mr Gerhardus Adriaan Odendal, jointly
instituted proceedings in the Western
Cape Division of the High Court
(the high court) against the appellant, the National Minister of
Transport, in which they sought
an order declaring that the
presumptions contained in s 73(1), (2) and (3) of the NRTA do not
apply to trailers. In the alternative,
they sought an order that the
prosecution of the owner of a trailer under s 73(1), (2) and (3) for
an offence involving the driving
or parking of a vehicle towing, or
having parked a trailer, is unlawful and inconsistent with the
Constitution.
[1]
For brevity, I shall refer to the first, second and third respondents
collectively as the respondents unless the context dictates
otherwise.
[4]
In due course the application served before Binns-Ward J who granted
the principal relief sought by
the respondents. The learned judge
declined to grant the alternative relief stating that the respondents
failed to make out a case
for such relief. In support of his
conclusion, the learned judge reasoned:
‘
Quite different considerations bear on the
applicability of the presumption in s 73(2). In respect of parking
cases, the vehicle
involved in the commission of the offence might
well be a trailer, with or without the towing vehicle. It is the fact
that the
vehicle is stationary in some spot that makes out the
offence. The rationale for the presumption is the probability that if
it
were not the owner of the vehicle who put it there, the owner
would know who was in possession of it at the relevant time. All the
considerations taken into account in this regard in the judgment in
Meaker
would pertain, and it is unnecessary in the
circumstances to repeat them. I am not persuaded that there is any
merit in the applicants’
counsel’s attempt to draw a
distinction between the current case and that in
Meaker
on the
basis that trailers are likely to be less valuable than
self-propelled vehicles, and that therefore the notion that their
owners would know who was in possession of them at any given time is
less compelling. As it is, the evidence is that the applicants
are
able to provide particulars of the identities of the hirers of their
trailers at any given time.
It was common ground between counsel that the
presumptions in s 73 derogate from the rights of accused persons in
terms of s 35(3)(h),
despite the fact that they do not create a
reverse onus in the true sense. It was in issue, however, whether the
derogation was
justifiable in terms of s 36 of the Constitution. As
far as I was able to discern from the evidence, the second and third
applicants
and the proxy for the first applicant have not actually
ever found themselves confronted with the effect of the presumptions
in
the context of a trial. And the evidence, especially that given by
the senior state advocate, suggests that it is unlikely that
they
ever would be. A question of this nature should in principle not be
raised in the abstract, but rather in the course of a
criminal trial
in which it is alleged that the presumption would operate in a manner
that would infringe the accused’s fair
trial rights. The
individually identified fair trial rights in s 35 of the Constitution
do not constitute an exhaustive list, and
in any event they are not
absolute. Fairness is an elastic concept in the sense that what might
be considered fair or unfair in
any given situation depends very much
on the peculiar circumstances of the case.’
[2]
[5]
Insofar as the grant of the principal relief is concerned, the high
court held that it ‘is plain
that ss (1) of s 73 has
application only in prosecutions in which it is necessary to prove
who was the driver of the vehicle to
which the alleged offence
relates’. And that ‘the range of offences potentially
implicated in the application of s
73(1) all concern the driving of
the vehicle’.
[6]
The high court then continued:
‘
. . . The pertinent ordinary meaning of “drive”
is “operate and control the direction and speed of a motor
vehicle”.
One does not drive a trailer when using it; one
drives the motor vehicle that is used to tow the trailer. Should a
driver unlawfully
exceed the speed limit or proceed against a red
traffic light or overtake on a sold white line while towing a
trailer, he or she
commits the relevant driving offence through his
or her operation and control of the towing motor vehicle, not through
the use
of the trailer. The prosecutor’s task would be to prove
who was driving the motor vehicle too fast, or who was behind the
wheel of the motor vehicle when it was driven across the intersection
when the light was red or when it overtook another vehicle
by
crossing a solid white line. That a trailer was being towed at the
time would be quite irrelevant to the task of proving the
elements of
the offence. It follows that the words “such vehicle” in
s 73(1) relate to the vehicle that is being driven
when the offence
is committed, and not any other vehicle.
There is nothing ambiguous about the language in which s
73(1) is couched. And construing the provision according to its tenor
does
not give rise to absurd or unbusinesslike results, or defeat the
evident object of the provision. One knows from everyday experience
that the majority of motor vehicles on the road can be identified,
and their registered owners traced, by means of the vehicle’s
number plate particulars irrespective of whether the vehicle is seen
from the front or the rear when the driver commits a moving
offence.
(The only exceptions that come to mind are motorcycles and trailers,
which are required to display only rear number plates.)
A situation
in which a vehicle’s rear number plate is obscured because it
is towing another vehicle, while it is not unusual,
will nevertheless
present in a distinct minority of motor traffic instances.’
[7]
The high court ultimately held that the language employed by s 73(1)
was clear and unambiguous. And
that the argument advanced by the
appellant to the effect that the definition of a ‘vehicle’
in the NRTA include a
‘trailer’ because the text, context
and purpose of the NRTA supports such an interpretation would do
violence to the
language of the text and thus ‘cross the
divide’ between the interpretive and legislative processes.
[3]
[8]
Dissatisfied with the grant of the principal relief, the appellant
sought and was granted leave to appeal
to this Court against
paragraph 1 of the high court’s order. Subsequently, the
respondents were granted conditional leave
to cross-appeal against
paragraph 2 of the high court’s order in terms of which their
application in relation to the alternative
relief that they had
sought was dismissed.
Issues
[9]
The issue in this appeal is primarily one of statutory
interpretation. It relates to the ambit and effect
of s 73(1) of the
NRTA. As will become apparent presently, the essential dispute
between the antagonists is whether, as a matter
of statutory
interpretation, s 73(1) is applicable to a trailer as defined, that
is, ‘a vehicle which is not self-propelled
and which is
designed or adapted to be drawn by a motor vehicle’.
Factual
background
[10]
It is opportune at this juncture to set out a brief account of the
facts that precipitated the proceedings in the
high court. Prior to
2013, the second respondent had for many years been conducting a
trailer hire business in Brackenfell, Western
Cape. The business
rented out trailers of different types and sizes registered in her
name to the general public. The third respondent
too conducted a
similar business and had acquired a substantial number of trailers
that were registered in his name. Between them,
the second and third
respondents owned some 2000 trailers for hire.
[11]
During 2013 the first respondent was incorporated. Whilst it is the
second respondent only who acquired shares
in the first respondent
and became its sole director, both she and the third respondent have
a financial interest in the first
respondent. In incorporating the
first respondent, the second and third respondents agreed that the
first respondent would carry
on the business of hiring out trailers
to the general public. In the furtherance of its business, the first
respondent has at its
disposal a fleet of three thousand trailers for
hire, two thousand of which were contributed by the second and third
respondents.
Nevertheless, the two thousand trailers contributed by
the second and third respondents remain registered in their
respective names.
The remainder of the trailers acquired since the
incorporation of the first respondent are registered in its name.
None of the
trailers is self-propelled. Thus, it is necessary for the
customers who hire the trailers to have vehicles suitable for towing
the trailers and valid drivers’ licences. Once a trailer is
hired out, the customer is at liberty to use it wherever they
choose
throughout the country.
[12]
The respondents were constrained to institute the proceedings to
which reference has already been made in paragraph
3 above as a
result of countless and continuing difficulties that they encountered
with traffic and prosecuting authorities. These
entailed, amongst
other things, charges preferred against them for traffic violations
involving their trailers whilst in the possession
and control of
their customers. Most of the traffic violations involved offences
committed whilst driving – self-evidently
by the towing vehicle
– like driving through a red traffic light, or exceeding the
speed limit. Invariably, the commission
of the offence is captured on
camera that is located in such a way that it can only capture the
rear number plate of the offending
vehicle. But in many instances the
rear number plate of the towing vehicle is obscured by the trailer
that is in tow. From the
perspective of the respondents, the
unfortunate consequence of this is that the camera can then only
capture the number plate of
the trailer which is then depicted on the
resultant photograph.
[13]
In those circumstances, the prosecuting authorities in whose area of
jurisdiction the traffic offences concerned
were committed, institute
criminal proceedings against the owner of the vehicle whose
registration number is depicted on the photograph,
in this instance
the trailer that is in tow. In the context of the facts of this case,
the owner of the affected trailer would
be one of the respondents,
depending on the identity of the person in whose name the trailer in
question is registered. The prosecuting
authorities do so, relying on
s 73(1) of the NRTA, because the identity of the driver of the towing
vehicle is unknown to them
since the camera could not capture the
towing vehicle’s registration number which, invariably, is
obscured by the trailer
in tow. Hence the charge is preferred against
the owner of the trailer whose registration particulars would instead
have been captured
on camera.
[14]
The use of concealed cameras to capture the commission of traffic
offences by drivers of vehicles driven on public
roads is virtually a
universal practice. Their use by traffic enforcement authorities on
public roads in this country is not contested
in this case. Nor is
their efficacy in issue.
[15]
In instances where notices in terms of
s 341
of the
Criminal
Procedure Act 51 of 1977
are issued, provision is made for the
recipient of the notice to provide the prosecuting authorities with
the particulars of the
person who was driving the vehicle when the
traffic violation was committed. In this regard, the deponent to the
answering affidavit
filed on behalf of the appellant stated that when
the owner of the vehicle provides, under oath, the particulars of the
driver
at the relevant time, the charges against the owner would be
withdrawn and instead the driver at the relevant time would be
pursued.
This avenue of escape for the registered owner of the
‘offending’ vehicle is colloquially called the ‘redirect
process’.
[16]
According to the appellant, the respondents’ complaint directed
at
s 73
of the NRTA is therefore misplaced. For their part, the
respondents contend that the virtues attributed to the ‘redirect
process’ by the appellant are exaggerated as the redirect
process is anything but perfect. They asserted that there had been
instances where they had been confronted with numerous warrants of
arrest issued against them in circumstances in which no summons
for
traffic violations had been served on them. The respondents further
claimed that the invidious situation brought about by the
warrants of
arrest issued against them is further compounded by the fact that the
licencing authorities also impose an embargo
against them renewing
their drivers’ and motor vehicle licences for as long as the
warrants of arrest remain of full force
and effect, and outstanding
fines unpaid. Thus, the respondents contend that they are subjected
to this inequity by virtue of the
fact that those charged with the
duty to enforce
s 73(1)
fail to appreciate that the presumption for
which
s 73(1)
provides is directed at the owners of the towing
vehicles and not the owners of the trailers in tow.
Statutory
framework
[17]
It is now timely to turn to the relevant statutory provisions that
are central to this appeal.
Section 73(1)
of the NRTA provides:
‘
(1) Where in any
prosecution in terms of the common law relating to the driving of a
vehicle on a
public road, or in terms of this Act, it is necessary to
prove who was the driver of such vehicle, it shall be presumed, in
the
absence of evidence to the contrary, that such vehicle was driven
by the owner thereof.’
[18]
The social utility of statutory provisions like s 73(1) to promote
public good was affirmed in
S v Meaker
1998 (2) SACR 73
(W). There, Cameron J had occasion to consider the
constitutionality of s 130(1)
[4]
of the repealed Road Traffic Act 29 of 1989 which was the functional
equivalent of s 73(1). The learned Judge opined that where
the
identity of the driver is an essential element of the offence, s 130
relieved the prosecution of the burden of proving who
the driver was
and ‘in the absence of rebutting evidence fixes criminal
liability on the owner instead’.
[5]
Section 130 was therefore found to be constitutionally compliant. The
learned Judge went on to hold that ‘s 130 pursues the
conviction of road traffic offenders by means of a presumption that
conduces precisely to that purpose. It is an eminently reasonable
device, which accords with practical common sense and its application
produces equitable results’.
[6]
[19]
As to the proper interpretation of s 73(2) to which the respondents’
conditional cross-appeal relates, the
high court held that it fell to
be dealt with on a different footing as different considerations bore
on its applicability. In
this regard, the high court, in essence,
concluded that it is the vehicle – which by definition includes
a trailer –
that is ‘stationary in some spot’
having been parked there unlawfully that constitutes the offence
under s 73(2). Furthermore,
the high court held that in relation to
the offence created by s 73(2), the principle expounded in
Meaker
applied with equal force in respect of parking
offences.
[20]
It is by now clear that the fate of this appeal hinges on the proper
interpretation of s 73(1) in the light of
the overall purpose of the
NRTA. Thus, I propose making reference first to certain decisions of
our courts that bear on statutory
interpretation.
Analysis
[21]
The principles of statutory interpretation are by now well-settled.
In
Endumeni
,
[7]
this Court authoritatively restated the proper approach to statutory
interpretation. It further explained that statutory interpretation
is
the objective process of attributing meaning to words used in
legislation.
[8]
This process, it emphasised, entails a simultaneous consideration of:
(a) the language used in the
light of the ordinary rules of grammar and syntax;
(b) the context in which the
provision appears; and
(c) the apparent purpose
to which it is directed.
[9]
[22]
What the Constitutional Court said in
Cool Ideas
in the
context of statutory interpretation is particularly apposite. The
Court said:
‘
A fundamental tenet of statutory interpretation
is that the words in a statute must be given their ordinary
grammatical meaning,
unless to do so would result in an absurdity.
There are three important interrelated riders to this general
principle, namely:
(a) that statutory provisions should always be
interpreted purposively;
(b) the relevant statutory provision must be properly
contextualised; and
(c) all statutes must be construed consistently with the
Constitution, that is, where reasonably possible, legislative
provisions
ought to be interpreted to preserve their constitutional
validity. This proviso to the general principle is closely
related
to the purposive approach referred to in (a).’
[10]
(Footnotes omitted.)
[23]
Where a provision is ambiguous, its possible meanings must be weighed
against each other given these factors. For
example, a meaning that
frustrates the apparent purpose of the statute or leads to
unbusinesslike results is not to be preferred.
[11]
Nor is an interpretation that unduly strains the ordinary, clear
meaning of words.
[12]
That text, context and purpose must always be considered at the same
time when interpreting legislation has been affirmed on various
occasions by the Constitutional Court.
[13]
[24]
Allied to these principles, courts must also interpret legislation to
promote the spirit, purport and object of
the Bill of Rights.
[14]
Again, courts should not unduly strain the reasonable meaning of
words when doing so.
[15]
In
Mistry v Interim Medical and Dental Council
of South Africa and Others
[1998] ZACC 10
;
1998 (4) SA 1127
(CC) the Constitutional Court held that the meaning
of the provisions in an Act must be ascertained having regard to the
scheme
of the Act as a whole, and to the object and purpose of the
legislation underpinning the provisions being interpreted.
[16]
Discussion
[25]
Central to the NRTA and to this case are the definitions of ‘driver’,
‘driving’, ‘motor
vehicle’, ‘park’,
‘trailer’, and ‘vehicle’ in s 1 of the NRTA.
‘Driver’ is
defined as ‘any person who drives or
attempts to drive any vehicle or rides or attempts to ride any pedal
cycle or who leads
any draught, pack or saddle animal or herd or
flock or animals’ and the verb ‘drive’ or any like
words has a
corresponding meaning. A ‘motor vehicle’ is
defined as:
‘
any self-propelled vehicle and includes–
(a) a trailer; and
(b) a vehicle having pedals and an engine or an electric
motor as an integral part thereof or attached thereto and which is
designed
or adapted to be propelled by means of such pedals, engine
or motor, or both such pedals and engine or motor, but does not
include—
(i) any vehicle propelled by electrical power derived
from storage batteries and which is controlled by a pedestrian; or
(ii) any vehicle with a mass not exceeding 230 kilograms
and specially designed and constructed, and not merely adapted, for
the
use of any person suffering from some physical defect or
disability and used solely by such person.’
[26]
The verb ‘park’ means to ‘keep a vehicle, whether
occupied or not, stationary for a period of
time longer than is
reasonably necessary for the actual loading or unloading of persons
or goods, but does not include any such
keeping of a vehicle by
reason of a cause beyond the control of the person in charge of such
vehicle.’ ‘Trailer’
is defined as ‘a vehicle
which is not self-propelled and which is designed or adapted to be
drawn by a motor vehicle, but
does not include a side-car attached to
a motor cycle.’ Finally, a ‘vehicle’ means ‘a
device designed or
adapted mainly to travel on wheels or crawler
tracks and includes such a device which is connected with a draw-bar
to a breakdown
vehicle and is used as part of the towing equipment of
a breakdown vehicle to support any axle or all the axles of a motor
vehicle
which is being salvaged other than such a device which moves
solely on rails.’
[27]
Insofar as the meaning of the words ‘driving’ and ‘drive’
are concerned, what Corbett J
said, albeit in a different context, in
Wells and Another v Shield Insurance Co. Ltd and Another
1965
(2) SA 865
(C) is instructive. The learned Judge said:
‘
The word “driving”, as used in
relation to the insured motor vehicle, means, ordinarily, in my view,
the urging on,
directing the course and general control of the
vehicle while in motion and all other acts reasonably or necessarily
incidental
thereto. It would thus include, inter alia, the starting
of the engine and the manipulation of the controls of the vehicle
which
regulate its speed and direction and also those which assist
the driver and other users of the road, such as lights, traffic
indicators,
etc.’
[17]
Thus,
in ordinary parlance someone who is driving a vehicle must of
necessity manipulate its controls to make it move or stop, reduce
or
increase its speed or make it turn in whatever direction chosen by
the driver thereof.
[28]
It is common cause between the parties that s 73(1) is a statutory
reverse
onus
provision. This is, however, not entirely correct. Rather, s 73(1),
unlike s 130(1) of Act 29 of 1989, is manifestly ‘no
more than
an evidential presumption, which gives certain prosecuting evidence
the status of prima facie proof, requiring the accused
to do no more
than produce credible evidence which casts doubt on the prima facie
proof’. Put differently, all it does is
to require an accused
person to produce only facts which are peculiarly within his or her
knowledge of which it would be unreasonable
and onerous to expect the
prosecution to establish. Thus, once the owner of the vehicle
produces proof to the contrary, namely
that he or he was not the
driver at the time of the commission of the offence, he or she will
be exonerated.
[18]
Nevertheless, the parties’ paths diverge when it comes to the
effect of s 73(1) in relation to trailers. The appellant contended
that s 73(1) draws no distinction between vehicles and trailers
since both are – in the context of the NRTA –
to all
intents and purposes regarded as vehicles. Notably, in support of
this proposition, the appellant heavily relied on the
definition of
the word ‘motor vehicle’ in s 1 of the NRTA which, as
already indicated in paragraph 25 above, includes
a trailer. For
their part, the respondents argued that s 73(1) applies only to
self-propelled vehicles and that trailers are not
such vehicles.
[29]
The high court rejected the appellant’s contention and instead
upheld the respondents’ counterargument.
It reasoned that the
fact that the definition of ‘motor vehicle’ in the NRTA
includes a trailer did not avail the appellant
because the definition
of ‘trailer’ makes plain that it is a vehicle which is
designed or adapted to be drawn by a
motor vehicle. And that it could
therefore not itself be driven.
[19]
It consequently concluded that the presumption located in s 73(1)
finds no application to the owner of a trailer when it is towed
by
another vehicle, driven by the person who propels or manipulates the
towing vehicle’s controls and, in the process, commits
an
offence either in terms of the common law or in terms of the
NRTA.
[20]
The correctness or otherwise of that conclusion is what confronts us
in this appeal.
[30]
The judgment of the high court was assailed on several bases. But
before I address the appellant’s contentions
in this regard, it
is necessary to mention that the appellant’s overarching
contention rests on two central pillars. First,
it was argued that
the high court erred in preferring the ordinary meaning of the verb
‘driving’ and ‘drive’
over the meaning
ascribed to those words in the definition section of the NRTA itself.
Second, it was contended that the object
of s 73(1) ‘is to
ensure the effective investigation and prosecution of driving and
parking offences’. And that if
trailers are excluded from the
ambit of s 73(1) the legislative purpose of the NRTA is undermined.
[31]
As to the text, scheme and purpose of the NRTA, counsel for the
appellant prefaced his argument by stating, with
reference to
decisions of our courts, that where a word in a statute has been
defined, the defined meaning prevails over the ordinary
meaning.
[21]
Counsel then argued that for purposes of s 73(1) the importance of
the words ‘vehicle’ and ‘driving’ looms
large. Building on this thesis the appellant contended that because a
trailer is defined as a ‘vehicle which is not self-propelled’
whilst a motor vehicle is defined to include a trailer, it must
necessarily follow that a trailer is a vehicle. Once this is
appreciated,
so the argument proceeded, and regard is had to the word
‘driving’ as defined and ‘drive’ which bears
a
corresponding meaning, the conclusion becomes inescapable that in
the context of the NRTA a trailer – which is a vehicle –
is capable of being driven thereby bringing it squarely within the
purview of s 73(1).
[32]
In support of its contention, the appellant placed much store in
decisions of this Court in
Santam
Versekeringsmaatskappy Bpk v Kemp
1971 (3) SA
305
(A);
Churchill v Standard General
Insurance Co Ltd
1977 (1) SA 506
(A) and
Road
Accident Fund
v Mkhize
2005 (3) 20 (SCA). In
Santam
,
this Court had occasion to consider the meaning of the word ‘motor
vehicle’ located in s 11(1)
[22]
of the Motor Vehicle Insurance Act 29 of 1942, after its amendment by
Act 31 of 1959. Potgieter JA, writing for the majority, said
(at
325E-F):
‘
Die uitleg wat ek aan die omskrywing van
“motorvoertuig” gegee het, en die slotsom dat art. 1 (2)
geld wanneer ‘n
sleepwa deur ‘n ander motorvoertuig
voortbeweeg word deur die meganiese krag van laasgenoemde voertuig,
hou die betekenis
in dat waar ‘n motorvoertuig ‘n
sleepwa, wat ‘n motorvoertuig is, trek, die bestuurder van die
trekkende voertuig
ook geag word die bestuurder van die sleepwa te
wees – tensy natuurlik die omstandighede sodanig is dat iemand
anders werklik
in beheer van die sleepwa is.’
[23]
[33]
In his minority judgment in the same case, Jansen JA said the
following (335C-E):
‘
Trouens, soos deur Kollega POTGIETER aangetoon,
is lg., geen groot sprong nie. Wat e.g. betref, kan dieselfde gesê
word. Behalwe
dat dit miskien afwyk van gewone spraakgebruik, kan
daar geen beginselbeswaar wees teen te praat van die “bestuur”
van 'n sleepwa, as eers aanvaar word dat dit 'n selfstandige
motorvoertuig is nie. Trouens, die bestuurder van ‘n lokomotief
bestuur in sekere sin elke wa aan die trein. So ook kan gesê
word dat die bestuurder van 'n motorvoertuig bestuur ook die
sleepwa
wat deur die motorvoertuig getrek word: hy beheer die stilhou en
wegtrek, die spoed en die righting van die sleepwa net
soseer as dié
van die trekkende motorvoertuig. Dié benadering is ook nie
iets nuut nie – dit is al voorheen
weerspieël in sekere
Ordonnansies (nou herroep) waar uitdruklike bepalings tot dien
effekte gevind kan word. Ord. 15 van 1938
(K) bepaal:
“
bestuurder”... (beteken)...
ten opsigte van ‘n sleepwa, die persoon wat die motorvoertuig
waaraan die sleepwa gehaak
is bestuur; en “bestuur het ‘n
betekenis dienooreenkomstig”.’
[24]
[34]
In
Mkhize
, the claimant was a passenger in the tanker that was
being propelled by the mechanical power of the tow truck towing it.
Section 20(1)
of the
Road Accident Fund Act 56 of 1996
therein under
consideration reads:
‘
For the purposes of this Act a motor vehicle
which is being propelled by any mechanical, animal or human power or
by gravity or
momentum shall be deemed to be driven by the person in
control of the vehicle.’
The issue before this Court was whether the claimant who
was the passenger in the cab of the tanker and who was injured when
the
tanker capsized as a result of the sole negligence of the driver
of the tow truck could be deemed to have been conveyed as a passenger
in the tow truck as contemplated in
s 20(1)
of the
Road Accident Fund
Act 56 of 1996
. In determining this issue, Conradie JA said:
‘
A driver obviously drives a vehicle when he or
she propels it by manipulating its controls. A person who is not,
within the ordinary
meaning of the term, ‘driving’ a
vehicle, but is nevertheless in control of a vehicle being propelled
by mechanical,
animal or human power, or by gravity or momentum, is
by s 20(1) of the Act deemed to be the driver of that vehicle. A
person who
is in control of a vehicle is the one who ‘can make
it move or not as he pleases’. Since the tanker was at the time
of the occurrence a vehicle being propelled by the mechanical power
of the tow truck and W J Lehmkuhl, the driver of the tow truck,
was
the one who could make it move or not as he pleased, Lehmkuhl is
deemed to have been its driver.
Someone who is deemed to be the driver of a vehicle is
in law, although perhaps not in fact, the driver of that vehicle and
must
be treated as though he or she were manipulating the controls
and making it move. Lehmkuhl, the driver of the tow truck, was also
the (deemed) driver of the tanker because he was in control of it. He
was the driver of two vehicles at the same time. There is
nothing
unusual about that. We often speak of the driver of a horse and
trailer or the driver of a car and caravan.’
The
learned Judge of Appeal went on to hold that it mattered not whether
the claimant was in the motor vehicle actually driven (in
that
instance the tow truck) or the one deemed to be driven (in that
instance the tanker).
[35]
Relying on these decisions, counsel for the appellant submitted that,
having regard to the statutorily defined
meanings of the words
‘driving’ and ‘drive’ in s 1 of the NRTA, a
trailer that is in tow constitutes a
vehicle ‘because its
mechanics and movements are determined and controlled by the driver’.
And that being the case,
it was then contended that the high court
erred in relying on the ordinary and dictionary meaning of the word
‘drive’
when in the context of the NRTA ‘drive’
bears a technical meaning.
[36]
It is of course permissible for courts to have recourse to
dictionaries in determining the meaning of words employed
in a
statute. But in doing so courts should take cognisance of the fact
that whatever meaning is ascribed must necessarily pay
due regard to
context and the underlying purpose of the statute under
consideration. For as Schreiner JA made plain seven decades
ago in
Jaga v Dönges and Another
;
Bhana v Dönges and
Another
1950 (4) SA 653
(A):
‘
Certainly no less important than the oft repeated
statement that the words and expressions used in a statute must be
interpreted
according to their ordinary meaning is the statement that
they must be interpreted in the light of their context. But it may be
useful to stress two points in relation to the application of this
principle. The first is that “the context”, as here
used,
is not limited to the language of the rest of the statute regarded as
throwing light of a dictionary kind on the part to
be interpreted.
Often of more importance is the matter of the statute, its apparent
scope and purpose, and, within limits, its
background. The second
point is that the approach to the work of interpreting may be along
either of two lines. Either one may
split the inquiry into two parts
and concentrate, in the first instance, on finding out whether the
language to be interpreted
has or appears to have one clear ordinary
meaning, confining a consideration of the context only to cases where
the language appears
to admit of more than one meaning; or one may
from the beginning consider the context and the language to be
interpreted together.’
[25]
[37]
But counsel’s proposition that a trailer in tow is for purposes
of s 73(1) of the NRTA a vehicle because
its mechanics and movements
are determined and controlled by the driver begs the question as to
whether the driver concerned in
actual fact determines and controls
the mechanics and movements of the vehicle towing the trailer or the
trailer that is in tow.
Ultimately, the true enquiry here is whether
it could be said that a trailer that is towed by another vehicle is
itself being driven
when a driving traffic offence is committed. The
answer will depend on the meaning to be attributed to the word
‘drive’
in light of the scheme and purpose of the NRTA.
[38]
It is necessary to emphasise that the decisions in
Santam,
Churchill
and
Mkhize
upon which the appellant heavily
relied were all concerned with the interpretation of statutory
provisions that were materially
different from those at issue in this
case. Indeed, the passage upon which the appellant relied from the
minority judgment of Jansen
JA in
Santam
impliedly accepted
that a trailer is ‘not an independent motor vehicle’ and
that one can speak of the driver of the
towing vehicle as the driver
of the trailer only in the loose sense of the word ‘drive’.
The truth of the matter, however,
is that the driver drives not the
trailer but the towing vehicle to which the trailer is coupled.
[39]
Section 1 of the NRTA tells us in terms that the verb ‘drive’
or any like word bears a meaning that
corresponds to that of the noun
‘driver’. The word ‘driver’ is then defined
as meaning ‘any person
who drives or attempts to drive any
vehicle or who rides or attempts to ride any cycle or who leads any
draught, pack or saddle
animal or herd or flock of animals’.
Riding or attempting to ride a pedal cycle or leading any draught,
pack or saddle animal
or herd or flock of animals are not relevant
for present purposes.
[40]
It is as well to remember that a ‘trailer’ is defined as
a vehicle which is not self-propelled but
rather designed or adapted
to be
drawn
by a motor vehicle. It is a fact that the
appellant makes no argument to the contrary that trailers hired out
by the respondents
to their customers are not self-propelled.
Significantly, it is also not in dispute that these trailers are
drawn by customers’
vehicles suitable for that purpose. Thus,
it is self-evident that it is the controls of the vehicle drawing or
towing the trailer
that are manipulated by the driver of the towing
vehicle whenever the trailer in tow is in motion. The trailer’s
speed and
direction is determined by that of the towing vehicle.
Accordingly, in the event of any traffic violation being committed,
it will
be the driver of the towing vehicle who would be liable to be
prosecuted. And the enforcement of road rules in terms of either the
common law or the NRTA in the course of driving a vehicle on a public
road would not be undermined. Nor would, in these circumstances,
the
principal purpose of s 73(1) be thwarted.
[41]
Accordingly, one’s focus must then be on the question whether
it could be said that a trailer is encompassed
in the definition of
‘vehicle’ because it is ‘a device designed or
adapted mainly to travel on wheels’
and therefore capable of
being driven so as to bring it within the purview of s 73(1) of the
NRTA. As already indicated, the contentions
of the antagonists are
diametrically opposed. In contending for an affirmative answer, the
appellant argued that the objects and
purpose of the section come to
the fore.
[42]
From the perspective of the appellant, s 73(1) plays a pivotal role
in the effective investigation and prosecution
of driving offences.
And that without it the State’s ability to effectively
prosecute driving offences would be hampered
or undermined. Given
human resources constraints, argued the appellant, it is impractical
for traffic officers to physically intercept
offending vehicles as
and when a traffic violation occurs and then identify the drivers. So
as to overcome these difficulties,
use of technological equipment to
detect and record offences committed whilst driving on public roads
became the only viable and
practical method available to the
authorities to detect traffic offences. Because a trailer in tow
obscures the rear number plate
of the towing vehicle, it is not
possible for traffic camera devices to capture the registration
number of the offending (ie. towing)
vehicle and therefore establish
the identity of the owner, hence the capturing and recording of the
rear number plate of the trailer
in tow.
[43]
It was further submitted that in these circumstances the capturing
and recording of the registration number of
the trailer would direct
the authorities to the registered owner of the trailer. If the owner
of the trailer was not the driver
when the driving offence was
committed, the owner is entitled and free to avail himself or herself
of the redirect procedure and
furnish the authorities with the
particulars of the person who was driving at the relevant time. The
thrust of the appellant’s
argument was that when regard is had
to these policy considerations it becomes manifest that the
interpretation embraced by the
high court fails to pay due regard to
the objects and purpose of s 73(1) in that it excludes trailers in
tow from the ambit of
this section with potential catastrophic
consequences for other road-users. Shorn of its embellishments, the
appellant’s
argument boils down to this: because the rear
number plate of the towing vehicle is invariably obscured by the
trailer –
whose number plate is instead captured on camera –
it is therefore the owner of the trailer who must in that event be
the
primary target for prosecution by virtue of s 73(1).
[44]
I do not agree. It is as well to remember that one is here concerned
with a case of statutory interpretation. And
the stark reality is
that s 73(1) itself contemplates the existence of the following: (a)
a vehicle; (b) being driven; (c) on a
public road; (d) the commission
of an offence either in terms of the common law or in terms of the
NRTA; (e) arising out of the
driving of the vehicle. The word ‘drive’
is, as already indicated, defined in the NRTA with reference to the
meaning
of the word ‘driver’ as defined. Driver means
someone who drives or attempts to drive any vehicle and includes
someone
who rides or attempts to ride a pedal cycle or leads any
draught, pack, saddle animal or herd or flock of animals. Thus, the
element
of ‘driving’ in relation to a trailer in tow is
lacking. It is illogical to speak of ‘driving’ a trailer
when in actual fact what happens is that it is the towing vehicle
that is being driven when it is propelled by manipulating its
controls with the trailer in tow. Accordingly, a trailer – not
being self-propelled – has no engine or controls to
manipulate
its speed and direction independently of the towing vehicle. On the
contrary, the speed and direction of a trailer in
tow is entirely
reliant on the speed and direction of the towing vehicle. In these
circumstances it is difficult to conceive of
a situation where one
can truly speak of a trailer being driven on a public road.
[45]
When one has regard to the text of s 73(1) in its contextual setting,
it does not support nor favour the construction
of the section for
which the appellant contended. The construction preferred by the high
court is to my mind also reinforced by
the linguistic analysis
discussed above. When a driver of a vehicle towing a trailer commits
a traffic violation whilst driving
on a public road, he or she will
not be immune from prosecution. If his or her identity is unknown
because the traffic violation
concerned was captured on camera, and
only the trailer’s registration was visible, s 73(1) will
be triggered. In that
event, the owner of the towing vehicle will be
presumed, in the absence of evidence to the contrary, to have been
the driver of
such vehicle. It bears mentioning that the respondents’
case is that for each trailer hired out, they keep records relating
to the identity of the drivers of the towing vehicles which they are
willing to provide to the traffic authorities. The core of
their
complaint which precipitated litigation in the high court is that
they do not – as owners of the trailers – want
to be
targeted for prosecution under s 73(1) when in truth trailers are
incapable of being driven within the purview of this section.
[46]
In sum, it bears emphasising that the essential issue here is
whether, as a matter of interpretation, s 73(1) is
applicable to a
trailer, as defined in the NRTA. Although a trailer is a ‘vehicle’,
it is nonetheless clear that s
73(1)’s central focus is the
driver of the vehicle who has allegedly committed an offence in the
course of driving the vehicle
concerned on a public road. Thus, in
essence, this section provides that where in a prosecution relating
to the driving of a vehicle,
it is necessary to prove ‘who was
driving such vehicle’, there is a presumption that such a
vehicle was driven by the
owner thereof. ‘Driving’ and
‘driver’ bear their ordinary meanings, that is, to
manipulate a vehicle’s
controls to regulate its speed and
direction and any other activity incidental thereto. It therefore
goes without saying that s
73(1) can only apply to a vehicle that is
itself capable of being driver. Thus, it must ineluctably that s
73(1) is not applicable
to a trailer.
Conclusion
[47]
Consequently, it follows that the reasoning of the high court cannot
be faulted. For the aforegoing reasons I am
therefore of the view
that the contentions advanced by the appellant in the high court and
persisted in before this Court were
rightly rejected by the high
court. This conclusion renders it unnecessary to deal with the
respondents’ conditional cross-appeal.
[48]
In the result the following order is made:
The appeal is dismissed with costs, including the costs
of two counsel.
________________________
X
M PETSE
DEPUTY
PRESIDENT
SUPREME
COURT OF APPEAL
Appearances
For
appellant:
R Jagga SC (with him Z Titus)
Instructed
by:
State Attorney, Cape Town
State Attorney, Bloemfontein
For
respondents:
W R E Duminy SC (with him J C Tredoux)
Instructed
by:
Jordaan & Ferreira
Inc., Somerset West
Rossouws
Attorneys, Bloemfontein
[1]
The Constitution of the
Republic of South Africa Act 108 of 1996.
[2]
Paras 32 and 37 of the
judgment.
[3]
See: para 30 of the high
court judgment.
[4]
Section 130(1) provided:
‘
Where
in any prosecution under the common law relating to the driving of a
vehicle on a public road, or under this Act, it is
material to prove
who was the driver of a vehicle, it shall be presumed, until the
contrary is proved, that such vehicle was
driven by the owner
thereof.’
[5]
See
S
v Meaker
1998 (2)
SACR 73
(WLD) para 84 b-c.
[6]
Id para 92j-93a.
[7]
National Joint Municipal Pension Fund v
Endumeni Municipality
[2012] ZASCA 13
;
2012
(4) SA 593
(SCA) (
Endumeni
).
Endumeni has been followed in later decisions of this Court. See,
for example,
Bothma Batho Transport
(Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013] ZASCA 176
;
2013 (2) SA 494
para 12;
Norvatis
v. Mapul
[2015] ZASCA 111
;
2016 (1) SA 518
para 27.
[8]
Id para 18.
[9]
Id para 18.
[10]
Cool Ideas 1186 CC v
Hubbard
[201]
ZACC 16;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) (
Cool
Ideas
) para 28.
[11]
Endumeni
above para
18.
[12]
Id para 25. See also:
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: In Re Hyundai Motor Distributors
(Pty) Ltd v Smit N.O.
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000
(10) BCLR 1079
(CC) (
Hyundai
).
[13]
For examples see:
Bato Star Fishing (Pty) Ltd
v Minister of Environmental Affairs and Tourism
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) para 90
(the judgment of Ngcobo J) quoted with approval in
Du
Toit v Minister for Safety and Security
[2009] ZACC 22
;
2010 (1) SACR 1
(CC);
2009 (12) BCLR 1171
(CC) para
38;
Bertie Van Zyl (Pty) Ltd v Minister for
Safety and Security
[2009] ZACC 11
;
2010 (2)
SA 181
(CC);
2009 (10) BCLR 978
(CC) (
Bertie
Van Zyl
) para 21;
KwaZulu-Natal
Joint Liaison Committee v MEC for Education, KwaZulu-Natal
[2013] ZACC 10
;
2013 (4) SA 262
(CC);
2013 (6) BCLR 615
(CC) para
129;
Kubyana v Standard Bank of South Africa
Ltd
[2014] ZACC 1
;
2014 (3) SA 56
(CC);
2014
(4) BCLR 400
(CC) paras 77-8.
[14]
Section 39(2) of the Constitution.
[15]
Hyundai
above paras
23-4.
[16]
Paras 17-18.
[17]
Para 870H-871A.
[18]
As to the different types of
presumptions see, for example,
S
v Zuma
&
others
[1995] ZACC 1
;
1995 (2) SA
642
(CC) para 41.
[19]
See: para 30 of the judgment.
[20]
See: para 31 of the judgment.
[21]
See:
Minister
of Defence and Military Veterans v Thomas
2016 (1) SA 103
(CC) para 20 in which is stated that where
parliament has defined a word used in a statute, this is taken to be
an indication
that parliament contemplated a special meaning as
assigned to the word and not an ordinary meaning. See also:
Commissioner for
Inland Revenue v Simpson
1949 (4) SA 678
(A) at 692;
Hoban
v Absa Bank Ltd t/a United Bank and Others
1999 (2) SA 1036
(SCA) para 18.
[22]
Section 11(1) after its
amendment read:
‘
.
. . a “motor vehicle” means any vehicle designed or
adapted for propulsion or haulage on a road by means of any
power
(not being exclusively human or animal power) without the aid of
rails, and includes any trailer of such vehicle, but does
not
include–
. . .’
Before its amendment, s 1(1) read:
‘
.
. . motor vehicle means any vehicle designed for propulsion on a
road by means of any power (other than human or animal power)
without the aid of rails, but does not include–
. . .’
[23]
The interpretation that I have given to the definition of “motor
vehicle”, and the conclusion that s 1(2) applies
when a
trailer is propelled by another motor vehicle through the mechanical
force of the aforementioned vehicle, signifies that
where a motor
vehicle tows a trailer, which is a motor vehicle, the driver of the
towing vehicle is also deemed to be the driver
of the
trailer—except, of course, where the circumstances are such
that someone else is actually in control of the trailer.
(Free
translation mine.)
[24]
In fact, as pointed out by Colleague POTGIETER, the last mentioned
is easy to arrive at. The same can be said about the first
mentioned. Except that it may perhaps depart from ordinary parlance,
there can be no objection in principle to speak of the “driving”
of a trailer once it is accepted that it is an independent motor
vehicle. In fact, the driver of a locomotive in a sense drives
every
part of the train. Thus it can also be said that the driver of a
motor vehicle also drives the trailer that is towed by
the motor
vehicle; he controls stopping and accelerating the trailer, as well
as the speed and direction thereof, as much as
that of the towing
motor vehicle. This approach is also not new—it has previously
been used in certain Ordinances (now
repealed) where express
provisions to this effect can be found. Ord. 15 of 1938 (C)
provides: “driver”…(means)…in
respect of a
trailer, the person that drives the motor vehicle to which the
trailer is attached; and “driving has a corresponding
meaning.
(Free translation mine.)
[25]
This statement was cited with
approval by the Constitutional Court in decisions like
Du
Toit v Minister for Safety and Security and Another
[2009]
ZACC 22
;
2009 (6) SA 128(CC)
;
2009 (12) BCLR 1171
(CC) para 37;
Bertie van Zyl
(Pty) Ltd and Another v Minister for Safety and Security and Others
[2009] ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10) BCLR 978
(CC) para
21; and
South
African Police Service v Public Servants Association
[2006] ZACC 18
;
2007 (3) SA 521
(CC);
[2007] 5 BLLR 383
(CC) para
17.