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[2007] ZASCA 35
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Clearing Agents, Receivers and Shippers v Member of the Executive Council, Transport, KwaZulu Natal and Others (659/05) [2007] ZASCA 35; [2007] SCA 35 (RSA); [2008] 1 All SA 1 (SCA) (28 March 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case no: 659/05
NOT REPORTABLE
In the matter between:
CLEARING AGENTS, RECEIVERS &
SHIPPERS
......................
APPELLANT
and
THE MEMBER OF THE EXECUTIVE
COUNCIL: TRANSPORT, KWAZULU-NATAL
......................
1
ST
RESPONDENT
THE MINISTER OF
TRANSPORT
......................
2
ND
RESPONDENT
THE COMMISSIONER FOR THE
SOUTH
AFRICAN REVENUE SERVICE
......................
3
RD
RESPONDENT
Before: Scott, Nugent, Lewis, Jafta et Cachalia JJA
Heard: 13 March 2007
Delivered: 28 March 2007
Summary: All motor vehicles must be registered and
licensed in accordance with the
National Road Traffic Act 93 of 1996
.
Regulation 84
, which is one of the regulations promulgated in terms
of the Act, provides for unregistered and unlicensed vehicles to be
operated
on a public road temporarily under a temporary or special
permit. It is intended as an interim measure, to permit unregistered
and
unlicensed motor vehicle users to operate their vehicles pending
their registration and licensing in terms of the Act. It cannot
be
used to facilitate the transport of vehicles, using their own power,
from a South African port to a neighbouring country.
Neutral
citation: This judgment may be referred to as
Clearing
Agents v MEC Transport
[2007]
SCA 35 (RSA)
JUDGMENT
CACHALIA
JA
[1] The appellant is a
universitas
whose members describe themselves as clearing and
forwarding agents and motor vehicle importers. The first and second
respondents
are the Member of the Executive Council: Transport,
Kwazulu-Natal who is responsible for the administration of transport
in that
province and the Minister of Transport to whom the
administration of the National Road Traffic Act 93 of 1996 (‘the
Act’)
has been entrusted. I refer to them together as ‘the
respondents’. The third respondent has no interest in these
proceedings.
[2] There are three appeals before us. The main appeal
arises in the following circumstances. There is a large market for
imported
second-hand motor vehicles in South Africa’s
neighbouring countries apparently because they are more expensive
when purchased
in South Africa. The appellant’s members exploit
this market by sourcing the vehicles from foreign countries, and then
ship
them to Durban from where they are driven to neighbouring
countries. The vehicles thus sourced are not intended for use in this
country.
[3] The appellant’s members have been engaged in
this business since at least October 2002 when the first and third
respondents’
officials amended the relevant rules of the
Customs and Excise Act 91 of 1964 to facilitate the removal in bond
of the imported vehicles
on South African roads to foreign
destinations. They use the procedures provided for in reg 84 to
achieve this result. Thus once
the vehicles were physically offloaded
from a ship, the appellant’s members applied for three-day
‘special permits’
to enable them to be driven to a
roadworthy testing centre to obtain certificates of roadworthiness.
Thereafter twenty-one day ‘temporary
permits’ were issued
to facilitate their being driven to foreign destinations on South
African roads.
1
[4] In February 2005 the National Department of
Transport, which reports to the second respondent, was advised that
reg 84 does not
permit the issue of temporary and special permits to
facilitate the transportation of these vehicles from the port of
entry to foreign
countries. The Department’s Director-General
accordingly issued a directive in May 2005 that the practice be
discontinued.
Following this directive the first respondent issued a
circular, MLB Circular No 29/2005, instructing all registering
authorities
to discontinue issuing ‘special’ and
‘temporary permits’ for such vehicles with effect from 1
July 2005.
In response the appellant sought a declaratory order in
the court below that reg 84 authorises ‘the issue of temporary
and
special permits in respect of imported second hand motor vehicles
intended to be driven in transit on South African roads, for the
purposes of export’. The application was dismissed by Koen AJ
in the Durban High Court. The appellant approaches this court
with
leave of the court below. The main question in this appeal is whether
reg 84, properly construed, authorises the issue of temporary
and
special permits for the purpose of enabling vehicles to be driven on
South African roads from the port of entry to our neighbouring
countries.
[5] There are two further subsidiary appeals. The first
is against an order of Koen AJ that the appellant furnish security
for costs.
The second is against an order of Combrinck J interdicting
the respondents from acting upon the directive pending the
determination
of the main appeal. It is convenient to dispose of
these appeals immediately. Counsel for the parties agree that the
determination
of this dispute hinges on the outcome of the main
appeal and that the two other appeals will have no practical effect
or result.
It is not suggested that there are any exceptional
circumstances that warrant their consideration.
2
Those appeals ought thus to be dismissed with costs. I
turn to consider the main appeal.
[6] A ‘regulation’ is defined in the Act to
mean a regulation in terms of the Act. Regulation 1 provides that in
the regulations,
an expression defined in the Act has that meaning
unless the context indicates otherwise. Regulations are subordinate
legislation
but the principles of statutory interpretation are
equally applicable to them. The proper approach to be followed when
interpreting
any statutory provision or regulation was formulated by
Wessels AJA in
Stellenbosch Farmers’
Winery Ltd v Distillers Corporation (SA) Ltd
3
as follows:
‘
In my opinion it is the duty of the Court
to read the section of the Act which requires interpretation
sensibly, i.e. with due regard,
on the one hand, to the meaning or
meanings which permitted grammatical usage assigns to the words used
in the section in question
and, on the other hand, to the contextual
scene, which involves consideration of the language of the rest of
the statute as well
as the “matter of the statute, its apparent
scope and purpose, and, within limits, its background”. In the
ultimate result
the Court strikes a proper balance between these
various considerations and thereby ascertains the will of the
Legislature and states
its legal effect with reference to the facts
of the particular case which is before it.’
[7] The regulations must accordingly be considered in
conjunction with and in the context of the Act. The Act’s
object is ‘to
provide for road traffic matters which shall
apply uniformly throughout the Republic and for matters connected
therewith’.
Its underlying purpose is to regulate the use of
motor vehicles in the Republic. Section 4 of the Act requires all
motor vehicles
to be registered and licensed unless exempt by
regulation. Regulation 5 sets out the types of motor vehicles that
fall within the
exemption.
4
Subject to these exemptions every motor vehicle in the
Republic, whether or not operated on a public road, must be
registered by a
title holder thereof with the appropriate registering
authority in accordance with the provisions of Part 1 under Chapter
111 of
the Regulations.
[8] Regulation 84, which we are concerned with for
present purposes, provides for those circumstances where unregistered
and unlicensed
motor vehicles may be operated on a public road under
a temporary or special permit. It reads thus:
‘
(1) A person who desires to operate on a
public road a motor vehicle which has not been registered and
licensed or not licensed, and
may not otherwise be so operated, may –
(a) if he or she is the owner of such motor vehicle, obtain a
temporary permit in respect of such motor vehicle in order to operate
such motor vehicle on a public road as if it is registered and
licensed, if such motor vehicle is to be –
(i) delivered by or to such owner, who is a motor dealer; or
(ii) registered and licensed in terms of this Chapter, but only
during the period permitted for such registration and licensing;
or
(b) obtain a special permit in respect of such motor vehicle in order
to operate such motor vehicle on a public road as if it is
registered
and licensed for purposes of –
(i) testing such motor vehicle;
(ii) proceeding to or returning from a place where repairs are to be
or have been effected to such motor vehicle;
(iii) reaching an examiner of vehicles or mass measuring apparatus;
or
(iv) repossessing such motor vehicle, as contemplated in regulation
69(2).
(2) . . .
(3) The owner of a motor vehicle which is licensed and who cannot
comply forthwith with the provisions of regulation 35 or 36, may
obtain a temporary permit in order to operate the motor vehicle on a
public road.
. . .
[9] Regulation 84 allows for a temporary permit to be
issued ‘if a motor vehicle is to be registered and licensed in
terms of
this Chapter’ (Chapter IV). The vehicles in the
present case are not intended to be registered under the regulations,
whether
a regulation falling within this chapter or under any other
regulation. Counsel for the appellants submitted that reg 87
5
(contained in this chapter) contemplates a register
being kept of permits that are issued under reg 84 and that the
recordal of permits
in that register constitutes the registration of
the vehicles concerned. Once permits were issued to members of the
appellant, so
it was submitted, and the permits were recorded in that
register, that would constitute registration of the vehicles
concerned under
the provisions of this chapter. It follows, the
submission continued, that the vehicles concerned were indeed
‘intended to
be registered’ under this chapter. There is
no merit in the submission. The recordal of permits under reg 87 does
not constitute
the registration of the vehicles concerned.
[10] The clear purpose of reg 84 is to allow for
vehicles to be driven on the roads pending their registration in
accordance with
the regulations (the reference in reg 84(1)(a)(ii) to
‘this chapter’ is probably erroneous). The vehicles that
are now
under consideration are not intended to be registered under
the regulations, whether under this chapter or at all, and on that
ground
alone the appellants are not entitled to permits. It is not
necessary in the circumstances to consider the other grounds upon
which
they were said not to fall within the terms of the regulation.
The following order is accordingly made:
(i) The main appeal (against the order of Koen AJ) is
dismissed with costs including those costs consequent upon the
employment of
two counsel;
(ii) the second appeal (against the security of costs
order of Koen AJ) is dismissed with costs;
(iii) the third appeal (against the order of Combrinck
J) is dismissed with costs.
_______________
A CACHALIA
JUDGE OF APPEAL
CONCUR:
SCOTT JA
NUGENT JA
LEWIS JA
JAFTA JA
1
See
reg 84 below para 8.
2
Section
21A of the Supreme Court Act 59 of 1959
Powers
of court of appeal in certain civil proceedings
(1)
‘
When at the
hearing of any civil appeal to the Appellate Division or any
Provincial or Local Division of the Supreme Court the issues
are of
such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed on
this
ground alone.
(2) . . .
(3) Save under exceptional circumstances, the
question whether the judgment or order would have no practical
effect or result, is
to be determined without reference to
consideration of costs.’
3
1962
(1) SA 458
(A) at 476E-G.
4
These
include motor vehicles propelled by electrical power derived from
overhead wires, have crawler tracks, belong to the Department
of
Defence or are self-propelled lawnmowers.
5
Regulation
87
Manner of issue of temporary or
special permit
‘
(1) On receipt
of the application referred to in regulation 85(1) or (2), the
registering authority may, and if the applicant so
requires, shall
issue an assessment showing the appropriate fees as determined by
the MEC of the province concerned and if applicable,
the penalties
and arrear fees referred to in regulations 57 and 59.
(2) On submission of the assessment and upon payment of the fees and
penalties referred to in subregulation (1), the registering
authority shall, subject to the provisions of regulation 59(2), and
if satisfied that the application is in order –
(a) record the particulars pertaining to –
(i) the applicant; and
(ii) if applicable, the date, number and place of issue of a
certification of roadworthiness, referred to in regulation 85(3)(c);
in the register of motor vehicles; . . .’