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[2019] ZAWCHC 30
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Brackenfell Trailer Hire (Pty) Ltd and Others v Minister of Transport (20825/2017; 22046/2018) [2019] ZAWCHC 30; 2019 (2) SACR 62 (WCC) (20 March 2019)
Republic of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No. 20825/2017
and
Case No. 22046/2018
Before: The Hon. Mr Justice Binns-Ward
Date
of hearing: 22 November 2018 and 25 February 2019
Date
of judgment: 20 March 2019
In
the matter between:
BRACKENFELL TRAILER HIRE (PTY)
LTD
First
Applicant
PASCAL CONSTANCE
SPRAGUE
Second
Applicant
GERHARDUS ADRIAAN
ODENDAL
Third
Applicant
and
THE MINISTER OF
TRANSPORT
Respondent
JUDGMENT
BINNS-WARD J:
Introduction
[1]
The
applicants seek, in terms of paragraph 2 of their notice of motion,
an order declaring that –
(a)
‘
on
a proper construction of sub-sections 73(1), (2) and (3) of the
National Road Traffic Act 93 of 1996
, the presumptions for which they
provide are not applicable to trailers;
alternatively,
(b)
the
prosecution under the
National Road Traffic Act 93 of 1996
of the
owner of a trailer for an offence involving the driving or parking of
a vehicle towing or having parked that trailer is
unlawful and
inconsistent with the Constitution of the Republic of South Africa
(Act 108 of 1996)’.
[2]
The first applicant is Brackenfell Trailer
Hire (Pty) Ltd, a company that carries on business in the hiring out
of trailers of various
types. Its business is an amalgamation of
those previously conducted by the second and third applicants
individually. The amalgamated
business has a fleet of approximately
3000 trailers available to hire. With few exceptions,
[1]
trailers are required, in terms of
s 4
of the
National Road
Traffic Act
(‘the NRTA’) read with the National Road
Traffic Regulations, 2000 (as amended), to be registered and
licenced, and
it is an offence to operate them on a public road if
they are not so registered and licenced. About two thousand of the
trailers
used in the business were contributed by the second and
third applicants, and remain registered in their respective names
individually;
whilst the balance, which are registered in the name of
the first applicant, have been acquired since the company’s
take
over of the second and third respondents’ businesses.
[3]
Regulation 8 of the National Road
Traffic Regulations requires that a natural person ‘proxy’
be identified when
a motor vehicle of which a juristic person is the
titleholder is registered. An employee of the first applicant
has been
nominated as the proxy for this purpose in respect of the
trailers owned by the company.
[4]
All of the trailers concerned fall within
the ordinary meaning of the word, being unpowered vehicles that are
towed by another.
[2]
As its name suggests, the first applicant’s business is
conducted from premises in Brackenfell in the Western Cape,
but the
trailers that it rents out end up being towed by its customers to all
corners of the country.
[5]
Section
73
of the
National Road Traffic Act
(‘the NRTA’) resorts
in Chapter XII of the Act, which is entitled ‘
Presumptions
and Legal Procedure
’. It
provides:
Presumption that owner drove or
parked vehicle.
(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
.
(2) Whenever
a vehicle is
parked in contravention of any provision of this Act
, it shall be
presumed, in the absence of evidence to the contrary, that
such
vehicle was parked by the owner
thereof
.
(3) For the
purposes of
subsections
(1)
and
(2)
and
section
88
it shall be presumed, in the absence of evidence to the
contrary, that, where the owner of the vehicle concerned is a
corporate
body, such vehicle was driven or parked, as contemplated in
those subsections, or used as contemplated in that section by a
director
or servant of the corporate body in the exercise of his or
her powers or in the carrying out of his or her duties as such
director
or servant or in furthering or endeavouring to further the
interests of the corporate body.
(Underlining and bold text
provided for highlighting purposes, having regard to the questions in
issue in these proceedings.)
[6]
Section 73
falls to be construed with
appropriate regard to the specially defined meanings of certain of
the words used therein. The
definitions are to be found in
s 1
of the NRTA, which sets out the given meaning of various words used
in the statute. The defined meanings given in
s 1
are, by
virtue of the provision, subject to the important qualification
‘
unless the context otherwise
indicates
’. The following
definitions set out in
s 1
(which, by virtue of the special
definition therein of ‘
this Act
’,
also apply in respect of the National Road Traffic Regulations) are
pertinent for present purposes:
“
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
“
motor
vehicle”
means
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
“
trailer”
means
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;
“
driver”
means
any person who drives or attempts to drive any vehicle or who rides
or attempts to ride any pedal cycle or who leads any draught,
pack or
saddle animal or herd or clock of animals, and “
drive”
or any like word has a corresponding meaning
or
any like word has a corresponding meaning
“
owner”,
in
relation to a vehicle, means—
(
a
) the person who has the
right to the use and enjoyment of a vehicle in terms of the common
law or a contractual agreement with
the title holder of such vehicle;
(b) any person referred to in
paragraph (a), for any period during which such person has failed to
return that vehicle to the title
holder in accordance with the
contractual agreement referred to in paragraph (a); or
(c) a motor
dealer who is in possession of a vehicle for the purpose of sale,
and who is licensed as such or
obliged to be licensed in accordance with the regulations made
under section 4, and ‘owned’
or any like word has a
corresponding meaning
“
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.
[7]
The only party cited as a respondent in the
case was the national Minister of Transport. He is the member
of the Cabinet responsible
for the administration of the Act.
When the application came before Papier J in May 2018, an order
was taken,
by agreement between the applicants and the respondent,
postponing the hearing to November for wider notice of the
proceedings
to be given. The order directed that this should
occur by way of publication of the order in the Rapport and Sunday
Times
newspapers and by physical delivery of a copy thereof to the
MEC for Transport and Public Works (Western Cape), the Minister of
Justice and Constitutional Affairs, the National Director of Public
Prosecutions, the Director of Public Prosecutions (Western
Cape) and
the heads of the traffic departments at Brackenfell and
Durbanville.
[3]
The notice given in terms of the order made by Papier J, which
included directions as to how any interested
party might intervene in
the proceedings, did not result in any other parties coming forward.
[8]
When the matter first came up before me, in
November 2018, I was concerned that yet wider notice of the
application should be given.
Road traffic regulation is after
all an area of concurrent competence between the national and
provincial spheres of government.
Traffic and parking are also
matters in respect of which municipalities have executive and
legislative competence in terms of s 156
of the Constitution.
Notice of the application had been given in terms of Uniform Rule
16A, but that was only pertinent in
respect of the alternative relief
sought by the applicants.
[9]
I therefore directed that notice of the
application be given by means of substituted service to the all of
the provincial and local
government authorities nationally, and
further postponed the hearing in order for that to happen. In
compliance with those
directions, a copy of the order and of the
notice of motion was served by registered post on the members of the
executive councils
responsible for road traffic matters and for local
government in each of the provinces and by facsimile (telefax) at the
national
head office and each of the provincial offices of the South
African Local Government Association (‘SALGA’).
[10]
The notice that was duly given to these
other parties in compliance with the order also did not elicit any
reaction.
[11]
The respondent did, however, supplement his
answering papers after the November postponement, amongst other
things, by obtaining
a supporting affidavit from a senior state
advocate in the office of the Director of Public Prosecutions
(Western Cape).
[12]
The content of the senior state advocate’s
supporting affidavit was mainly argumentative. He expressly
declined to enter
into any debate about the proper construction of
s 73 of the NRTA, and confined himself to the questions arising
from the
alternative relief sought by the applicants in terms of
paragraph 2.2 of their notice of motion.
[4]
[13]
In the result, the Minister of Transport
was the only party to oppose the application.
The factual context of the application for declaratory relief
[14]
The applicants were moved to bring the
application because of the on-going difficulties that each of them is
experiencing arising
out of the bringing of charges against them for
traffic violations, the commission of which is captured by the
traffic policing
authorities on camera. The overwhelming
majority of the violations concerned are driving offences, such as
exceeding the
speed limit or proceeding against a red traffic light.
A very small number of the traffic violations involve parking
offences,
in which tickets are issued to the applicants in respect of
trailers registered in their names that are found illegally parked.
[15]
It is important for the purposes of this
case to be mindful of the distinction between offences involving the
driving
of
a motor vehicle (
moving
violations) and what might be called
stationary
violations, which would generally have to do with the parking of a
vehicle. The dichotomy is significant because it is given
express recognition in the wording of the presumptions discretely
provided for in subsections (1) and (2) of s 73 of
the
NRTA.
[16]
The traffic violations that are pertinent
in respect of the relief sought by the applicants are committed by
persons towing or parking
trailers that have been hired from the
first applicant. As mentioned, the trailers are registered in
the name of the company
or those of either the second or third
applicant. The criminal charges that are preferred arising out
of the commission of
these offences are brought by means of the
service of summons or by the delivery of notice in terms of
s 341
of the
Criminal Procedure Act 51 of 1977
; although, as I shall
describe presently, the second and third applicants are in many
instances unaware of the institution of the
prosecutions until
sometime after the issue of warrants for their arrest for being in
contempt of court by virtue of their failure
to appear for trial.
[17]
In the matters that prove problematic for
the applicants the commission of the driving offences involved is
captured on camera by
a device that is so positioned that the motor
vehicle used in the offence is photographed from the rear.
Owing to the fact
that the motor vehicle concerned is towing one of
the applicants’ trailers at the time, the trailer obscures the
rear number
plate of the motor vehicle, and only the registration
number of trailer is visible on the photograph.
[18]
The relevant prosecuting authorities –
which, it would appear, are almost invariably the local authorities
within whose respective
territorial jurisdictions the offences are
committed or the local public prosecutors acting in close
co-operation with such authorities
– proceed in those cases
against the applicants. The authorities have no evidence as to
the identity of the driver
of the towing vehicle at the time of the
photographed commission of the offence, but proceed against the
applicants on the basis
of the registered ownership information
obtainable in respect the trailer in tow at the time. The
obvious inference is that
they proceed against the applicants only by
reason of their appreciation of the effects of the presumptions in
s 73
of the NRTA, one of which is to provide an incentive to the
identified registered motor vehicle owner, if he or she did not
commit
the offence, to provide the particulars of the person who was
using the vehicle at the relevant time. That evidence gathering
is indeed one of the objects of the presumptions was noted by
Cameron J (Mailula J concurring) in
S
v Meaker
1998 (8) BCLR 1038 (W), 1998
(2) SACR 73,
[5]
in respect of the materially equivalent provisions of s 130 of
the Road Traffic Act 29 of 1989, which was the immediate predecessor
of the NRTA on the statute book.
[6]
[19]
The notices issued in terms of
s 341
of the
Criminal Procedure Act in
such matters include a section in which the
recipient registered owner of the vehicle involved in the alleged
offence may fill
in the particulars of the person who was using the
vehicle at the relevant time. The Director: Road Traffic
Legislation and
Standards in the Department of Transport made the
answering affidavit on behalf of the respondent. He averred
that when an
owner completes and returns the
s 341
notice
to the road traffic authority giving the particulars of the third
party who was in charge of the vehicle at the time,
no further steps
are taken against the registered owner. This was referred to as
a ‘redirect process’.
It was also averred that if a
registered owner who had been summonsed to appear in court on the
basis of a presumption in
s 73
of the NRTA informed the public
prosecutor that someone else had been using the vehicle at the time
of the alleged offence and
provided the third party’s
particulars, proceedings against the owner would be withdrawn.
[20]
The second and third applicants testified
that the redirect system did not function efficiently, although the
evidence they provided
in support of that allegation was sketchy.
They also testified that there were many instances in which cases
against them
were called in court without a summons ever having been
served on them. In such matters warrants of arrest for contempt
of
court had nevertheless been issued because of their failure to
appear. In addition to the to be expected prejudicial
consequences
of warrants of arrest, the applicants allege, and the
respondent confirms, that they are also blocked, while such warrants
and
the payment of any related fines remain outstanding, from being
able to renew their drivers’ and motor vehicle licences.
They claim that these problems are occasioning serious administrative
dislocations in their business.
[21]
The applicants contend that most of the
difficulties would not arise were it appreciated that the
presumptions in
s 73
apply not against the owners of trailers, but
only against the owners of the towing vehicles; hence the application
for declaratory
relief. Their claim for alternative relief
arises only if the court is not with them on the import of
s 73.
[22]
In the event that it is held that the
presumptions are applicable to them in their capacity as owners of
the hired-out trailers,
they contend that the statutory provisions
derogate unjustifiably from their constitutional rights in terms of
s 35(3)(h)
of the Constitution. Section 35(3) of the Bill
of Rights entrenches the right of every accused person to a fair
trial, including
(in terms of paragraph (h) thereof) the right ‘to
be presumed innocent, to remain silent, and not to testify during the
proceedings’.
The proper construction of s 73 of the NRTA
[23]
Any exercise of literary construction, if
it is to be well directed, must take place with proper regard to the
context in which
the language in issue has been employed.
Context in this regard includes not only the primary effect of the
combination of
the words used in the peculiar textual setting, which
is the obvious point of departure, but also the apparent purpose of
their
employment as may be inferred from the evident object of the
document in which they have been integrated. The determination
of the actual effect of the language should give sensible expression,
grounded on the words that have been
used
, to the objectively discernible
object of their provision. This necessarily implies a unitary
(or holistic) exercise, as
opposed to a componential one.
[7]
The exercise is objective in character, in that the wording
used must speak for itself. Accordingly, if the language
employed is contextually unambiguous, effect must be given to it
according to its plain tenor, unless to do so would result in
an
absurdity.
[8]
Nothing more, nothing less. Any temptation by a judge to
improve on it, in order to give what he or she might consider
would
be better effect to the apparent object of the text by construing it
to have a wider import than the wording used does, should
be
eschewed, for that would be to stray impermissibly into the realm of
legislating or contract-making.
[9]
Section 73(1)
[24]
It is plain that subsection (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. It is also clear that the range of offences
potentially implicated
in the application of s 73(1) all concern
the driving of a vehicle. (See the parts of the quoted
provision that were
highlighted in paragraph [5]
above.)
[25]
The defined meaning of ‘drive’
in the NRTA extends the ordinary meaning of the verb by including the
riding of a pedal
cycle
[10]
and the leading of animals without derogating from the ordinary
meaning of the word. The pertinent ordinary meaning of ‘
drive
’
is ‘operate and control the direction and speed of a motor
vehicle’.
[11]
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.
[26]
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.
[27]
The regulations made under the NRTA require
that number plates should be affixed in a position in which they are
readily visible
and that the vehicle should not be operated on a
public road in conditions in which they are obscured, unless their
temporary obstruction
is beyond the control of the driver.
[12]
A specific exception to the general rule in respect of the
non-obstruction of number plates applies to towing vehicles
by virtue
of reg. 35(9) of the National Road Traffic Regulations, 2000,
[13]
which provides: ‘
The provisions of
subregulation (7) in relation to legibility and visibility of a
number plate which is affixed to the back of a
motor vehicle, shall
not apply to a motor vehicle which is towing another vehicle
’.
There is no dispensation, however, from the requirement that a towing
vehicle that is required to bear a rear number
plate must bear such a
number plate even when it is towing another vehicle. Of
interest for present purposes is the consistency
of the pertinent
provisions of the regulations with the provisions of the Act, in
which the identities of the towing vehicle and
the vehicle that is
being towed are treated discretely, it being recognised that two (or
more) separate vehicles with their own
individual registered identity
are involved. My attention was not directed to any provision of
the Act that would make it
necessary for the prosecution to prove the
identity of the owner of a trailer as a necessary element of a
driving
offence.
[28]
The respondent advanced an argument which
sought to avoid the effect of the plain tenor of s 73(1) by
contending that ‘a
purposive construction’ required
accepting that the presumption applied against the owner of the
trailer because so many
moving offences are identified by means of
the use of cameras that photograph the vehicle driven by the
offending driver from the
rear, with the result that when a trailer
is being towed, the rear number plate of the vehicle occupied by the
driver is obscured,
and all that appears on the photograph is the
number plate of the trailer. Distilled to its essence the
argument came down
to a contention that violence should be done to
the plain language of the provision in order to bring within its
embrace a class
of cases in respect of which the actual wording gives
no assistance to the prosecution. The argument was to the
effect that
construing the provision according to its language would
leave a lacuna that would expose a loophole in the ambit of the
presumption,
and that it was therefore necessary to interpret the
provision in a way that would avoid the gap. This was the
nature of
the so-called ‘purposive interpretation’ that
was contended for. Support was sought for the thesis in the
inclusion
of ‘trailer’ in the Act’s special
definition of ‘motor vehicle’.
[14]
[29]
The argument is fallacious. It
proceeds from the misdirected premise that statutory interpretation
involves giving effect
to a broadly discernible object of the
legislation, even if the wording employed by the legislature has not
addressed it in a specific
aspect. Engaging in that sort of
interpretative embroidery would be to add to the legislation, not to
construe what the lawmaker
has put there. In this case the
proper interpretation of the words exposes a possible lacuna, it does
not cause it.
If the lacuna is problematic, then it is for the
legislature to remedy the position by amending the legislation.
And were
it minded to do so, it would no doubt have to consider the
constitutional justifiability of presuming the owner of vehicle B to
have been the owner of vehicle A when the vehicle A was used in the
commission of an offence. (That was a question that did
not
arise in
Meaker
’s
case supra.)
[30]
Moreover, in my judgment, the construction
of s 73(1) contended for by the respondent gains no assistance
from the inclusion
of ‘trailer’ in the defined meaning of
‘motor vehicle’. One can readily understand how, in
the context
of certain of the statute’s provisions, the term
‘motor vehicle’ might sensibly include a trailer.
Section 4,
which regulates the licensing and registration of
motor vehicles, is an example. But the enactment’s
special definition
of ‘trailer’,
[15]
more particularly that element thereof that defines a trailer as
something ‘
which is designed or
adapted
to be drawn by
a motor vehicle
’ makes it clear
beyond any doubt that the legislature did not have in mind a vehicle
that could be driven. It contemplated
rather a vehicle that was
designed or constructed to be
drawn
by
another
vehicle that could be driven. It is the driving of the latter
vehicle (i.e. one falling within paragraph (b) of the statutory
definition of ‘
motor vehicle
’
that enables a trailer to be drawn. It is not without
significance in this regard that the definition of ‘motor
vehicle’ has been framed in a manner that draws a line of
distinction between types of vehicle that are designed to be drawn
(para. (a)) and those capable of being driven rather than drawn
(para. (b)). (When the legislation is directed at treating
the
towing and towed vehicles compositely for any purpose, the expression
‘
combination of motor vehicles
’
is employed; a term also defined in s 1 of the NRTA.
[16]
)
[31]
For these reasons I have concluded that the
presumption in 73(1) does not operate against the owner of a
trailer in
in any
prosecution in terms of the common law relating to the driving of a
vehicle on a public road, or in terms of the NRTA, in
which the
trailer was at the time being towed by another vehicle being driven
at the time by the person involved in the commission
of the alleged
offence. Put differently, in cases in which it is necessary for
the prosecution to prove the identity of the
driver of the vehicle
used in the commission of an offence, whether at common law or in
terms of the Act, the presumption in s 73(1)
operates only
against the owner of such vehicle, and not against the owner of any
trailer being towed by such vehicle at the time,
unless the nature of
offence concerned pertains to the operation of a ‘combination
of motor vehicles’ (as defined).
Section 73(2)
[32]
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.
[33]
In the result the applicants have not made
out a case for relief in terms of paragraph 2.1 of their notice of
motion insofar as
s 73(2) of the NRTA is concerned.
Section 73(3)
[34]
Subsection 73(3) does not operate
independently of the presumptions in subsections (1) and (2). It
is implicated only insofar
as a presumption under either of the
latter two subsections arises, and when the owner of the vehicle
concerned happens to be a
juristic person. The applicants’
complaint therefore does not require any separate consideration of
the incidence of
s 73(3). The effect of what has been held
thus far is that it will apply in prosecutions against the first
applicant’s
proxy in respect of offences comprehended by
s 73(2), but not in those to which s 73(1) refers.
Relief sought in the alternative in terms of para. 2.2 of the
notice of motion
[35]
Insofar as the refusal of any declaratory
relief to the applicants in respect of the effect of the presumption
created by s 73(2)
of the NRTA results in a need to consider the
other declaratory relief sought in the alternative, that can be
disposed of shortly.
No basis has been laid for the remedy
sought in paragraph 2.2 of the notice of motion as formulated.
[36]
As mentioned in the introduction to this
judgment, the contention that underpins the alternative relief is
that the presumptions
in s 73 are incompatible with an accused’s
rights to a fair trial in terms of s 35(3)(h). But the
relief
is not framed in a manner that seeks a declaration of
constitutional incompatibility. And the notice of motion was
not amended,
even after the difficulties with the formulation of the
relief sought in terms of paragraph 2.2 thereof were highlighted in
the
respondent’s answering papers and during the course of
argument.
[37]
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.
[38]
Accordingly, in the exercise of my
discretion in respect of the granting of declaratory relief, I
decline to make any declaration
as sought in terms of paragraph 2.2
of the notice of motion.
Costs
[39]
The applicants will achieve substantial
success insofar as they will obtain favourable declaratory relief in
respect of the import
of s 73(1) of the NRTA. Their
application for similar relief in respect of s 73(2) has been
unsuccessful, however;
as has their application for alternative
relief. As a significant part of the oral argument was given
over to matters in
respect of which the applicants have been
unsuccessful, I do not think it would be fair for the respondent to
be burdened with
liability to pay all of the applicants’ costs
of suit. In my judgment, justice will be done if, leaving aside
the wasted
costs occasioned by the postponement on 22 November 2018,
the respondent pays two thirds of the applicants’ costs.
[40]
The proceedings set down for hearing on 22
November 2018 were postponed for two reasons. The first, as
already mentioned,
was because I was not satisfied that sufficiently
wide notice of the application had been given. The second was
because,
contrary to an earlier intimation by their attorneys to the
respondent’s attorneys, it became apparent that the applicants
were persisting with an attack on the constitutionality of s 73
of the NRTA. This prompted the respondent’s counsel
to
seek a postponement to deal with matter that the respondent had not
addressed in his answering papers filed of record at that
stage
because it had appeared unnecessary to do so in the context of the
applicants’ attorneys’ aforementioned intimation.
As to the first reason, it was the responsibility of the applicants
to have given sufficient notice of their application, and they
should
bear the consequences of not having done so. As to the second
reason, I consider that the respondent was entitled
to a postponement
in the circumstances. The applicants will therefore be ordered
to pay the wasted costs incurred by the
respondent in respect of the
hearing on 22 November.
[41]
The employment by both sides of two counsel
seems to me to have been reasonable, having regard to the relative
importance of the
issues involved.
Case no. 22046/18
[42]
It remains to deal with an application
brought by the applicants in separate proceedings under case
no. 22046/18 during the
interval between the first and second
hearings before me of the principal application in case
no. 20825/2017. Those
proceedings, in which the City of
Cape Town, the National Director of Public Prosecutions and the
Minister of Transport were cited
as the respondents, came before the
duty judge in the fast track of the Third Division on 10 December
2018. The City of Cape
Town was the only respondent to appear
at that hearing to oppose the application. The applicants
sought costs in those proceedings
only against any respondent that
opposed their application. In the result, the only parties with
an interest in the determination
of costs in those proceedings are
the applicants of the one part and the City of the other.
[43]
The duty judge was persuaded to make what
was in essence an order that stayed the institution or continuation
of any prosecutions
against the applicants for offences involving the
towing or parking of trailers owned by them, and setting aside
certain warrants
of arrest issued in relation to proceedings already
instituted in respect of such offences. The aforementioned
relief was
granted pending what was referred to in the order as ‘the
return day’, and subject to the provision by the first
applicant
to the City of Cape Town’s attorney of certain
information concerning the hirers of the trailers involved.
[44]
The order that was made does not read
sensibly in material respects; most especially by reason of its
failure to make provision
for any ‘return day’, and the
absence, in any event, of an evident purpose for a return day.
I also have reservations
about the competence of certain of the
relief granted under it. For instance, it is not apparent upon
what basis the court
purported to cancel warrants of arrest issued by
various unidentified inferior courts. That is a measure that
would ordinarily
follow only in appropriate review proceedings, and
on notice to the judicial officers who had authorised the issue of
the warrants
concerned. But that is water under the bridge.
[45]
The order made by the duty judge also
provided that that matter should ‘be heard together with case
number 20825/2017 [being
the principal case determined by this
judgment] between the same applicants and the third respondent [the
Minister of Transport]’.
What was still to be heard and
decided in case no. 22046/18, apart from the determination of costs,
was not apparent. And,
if only costs were to be determined, it
was not apparent why I should determine them, rather than the judge
who had decided the
application.
[46]
When the application in case no. 22046/18
was duly brought before me in accordance with the direction given by
the duty judge,
there was no appearance on behalf of the City of Cape
Town. I was asked by the applicants’ counsel, however, to
make
an order by agreement between the applicants and the City
extending the interim interdict granted on 10 December 2018
until
‘the final disposal’ of the matter in
case number 20825/17, with costs to stand over for later
determination.
I acceded to the request. The effect of
the order can only be to extend the prohibitory interim interdicts
contained in the
order made by the duty judge pending ‘the
final determination’ of the principal case. I
interpret ‘final
determination’ to include the
determination of any appeals that might ensue from this judgment, or
the confirmation of this
judgment by the failure of the losing party
to challenge it within the time that application can be made for
leave to appeal from
it, whichever occurs first.
[47]
Apart from the aforementioned extension of
the interim interdict sought by agreement, it was not clear to me
what I was supposed
to do with the application in case no. 22046/18,
and the applicants’ counsel were not really able to enlighten
me.
I invited them and, through them, the attorney who had
appeared for the City before the duty judge but was nowhere to be
seen when
the matter came before me, to make written representations.
None were forthcoming. I am therefore not disposed to
make
any further order in case no. 22046/18. If the
applicants or the City of Cape Town seek to have the costs of those
proceedings
determined after the ‘final determination’ of
the matter in case no. 20825/2017, they must make arrangements
through
the registrar for that to be done by the duty judge who made
the order on 10 December 2018.
Order
[48]
The
following order is made in case no. 20825/2017:
1.
It
is declared that
in
cases in which it is necessary for the prosecution to prove the
identity of the driver of the vehicle used in the commission
of an
offence, whether at common law or in terms of the
National Road
Traffic Act 93 of 1996
, the presumption in
s 73(1)
of the said
Act operates only against the owner of such vehicle, and not against
the owner of any trailer being towed by such vehicle
at the time the
offence is committed, unless the nature of the offence concerned
pertains specifically to the operation of a ‘combination
of
motor vehicles’ (as defined in the Act).
2.
Save
as provided in terms of paragraph 1, the application is otherwise
dismissed.
3.
Save
as provided in terms of paragraph 4, the respondent shall be
liable for two thirds of the applicants’ costs of suit,
including the fees of two counsel where such were engaged.
4.
The
applicants shall be liable to pay the wasted costs incurred by the
respondent in respect of the postponement of the hearing
set down on
22 November 2018, including the fees of two counsel.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicants’ counsel: W.R.E. Duminy SC
J.C.
Tredoux
Applicants’ attorneys: Jordaan & Ferreira Inc
Somerset
West
Rapp
Van Zyl Attorneys
Cape
Town
Respondent’s counsel: R. Jaga SC
Z.
Titus
Respondent’s attorneys: The State Attorney
Cape
Town
[1]
Trailers drawn by tractors (as
defined) and trailers owned by the Department of Defence are exempted
from registration in terms
of reg. 5 of the National Road
Traffic Regulations, 2000.
[2]
The primary definition of
‘
trailer
’
in the
Oxford
Dictionary of English
is ‘
an
unpowered vehicle towed by another
’.
[3]
Brackenfell and Durbanville both
fall within the municipal area of the City of Cape Town, and it
appears from the affidavits of
service of the order made by Papier J
that traffic matters in the Durbanville area are managed from the
traffic department’s
office in Brackenfell.
[4]
See paragraph [1](b) above for the
relief sought by the applicants in para. 2.2 of the notice of
motion.
[5]
At pp. 1055J-1056B (BCLR),
and
90j-91b
(SACR).
[6]
Section 130 of the Road Traffic Act
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 the vehicle, it shall be presumed, until the
contrary is proved, that such vehicle was
driven by the owner
thereof.
[7]
Rainy
Sky SA & Others v Kookmin Bank
[2011]
UKSC 50
,
[2012] 1 All ER 1137
(SC) at para. 21 (endorsed in at least
four judgments of the Supreme Court of Appeal, most recently in
The
City of Tshwane Metropolitan Municipality v Blair Atholl Homeowners
Association
[2018] ZASCA 176
,
[2019] 1 All SA 291
(SCA) at paras. 59-61).
English
jurisprudence seems to maintain some distinction between contractual
and statutory construction; whereas with us, notwithstanding
that we
do apply various canons of interpretation peculiarly in statutory
construction, most importantly constitutional compatibility,
general
principles of textual interpretation apply indiscriminately,
regardless of the character of the deed or instrument in
issue.
Rainy
Sky
was a judgment concerning the construction of a contract, but the
earliest reference to it in a South African judgment that I
am aware
of (
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] ZASCA 13
,
[2012] 2 All SA 262
(SCA),
2012 (4) SA 593)
was in
a matter concerning the construction of a statutory provision.
[8]
Cf.
Cool Ideas 1186 CC v Hubbard
[2014] ZACC 16
,
2014 (4) SA 474
(CC),
2014 (8) BCLR 869
, at para.
28.
[9]
See
the
cautionary note sounded in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
supra, in para. 18, that judges should take care not to cross the
divide between interpreting and legislating by substituting
what
they regard as reasonable, sensible or businesslike for the words
actually used.
[10]
A ‘
pedal
cycle
’ is
defined in terms of s 1 of the NRTA to mean ‘
any
bicycle or tricycle designed for propulsion solely by means of human
power
’.
[11]
Oxford Dictionary of English.
[12]
Reg. 35(6)(b) of the National
Road Traffic Regulations, 2000.
[13]
Originally published in GNR 225 of
17 March 2000 and subsequently amended from time to time, most
recently in terms of R1408 published
in GG40420 dated 11 November
2016.
[14]
See paragraph 0
above.
[15]
Id.
[16]
See e.g. regulation 155 of the National Road
Traffic Regulations, which prohibits the operation on a public road
of a vehicle
or
combination of motor
vehicles
, which does not comply with the
prescribed standards of braking performance.