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[2015] ZAGPPHC 91
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Milk South Africa v W J Jordaan t/a Pegamoo Dairy and Another (73422/13) [2015] ZAGPPHC 91 (17 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO.: 73422/13
DATE: 17 FEBRUARY
2015
In the matter
between:
MILK SOUTH
AFRICA
.................................................................................................................
Applicant
and
W J JORDAAN t/a
PEGAMOO
DAIRY
..............................................................................
First
respondent
DWARS EEN EIENDOM
CC
..........................................................................................
Second
respondent
JUDGMENT
VAN DER WESTHUIZEN,
AJ
1. This is an
application for an order directing the first and second respondents
to comply with the regulations relating to the
statutory measures
promulgated in terms of the Agricultural Products Act, No. 47 of
1996.
2. The applicant,
Milk South Africa, is an association incorporated under section 21 of
the Companies Act, 1973.
3. In terms of
section 14
of the
Marketing of Agricultural Products Act, 47 of 1996
,
the applicant was entrusted with the implementation, administration
and enforcement of statutory measures described in the respective
Schedules to R1219, R1220 and R1221, all of 23 December 2005.
4. In similar
fashion, the applicant was entrusted with the implementation,
administration and enforcement of statutory measures
described in the
respective Schedules to regulations No. 55, 56 and 57, all of 30
January 2009.
5. On 10 May 2010,
under case no 26014/10, the applicant launched an application to
compel the first respondent to comply with his
obligations under the
Act. In view of the opposition that was raised by the first
respondent, the applicant proceeded to launch
on 12 December 2013 a
separate application, under case no 73422/13, against the second
respondent.
6. This court on 6
August 2014 granted an order that the two aforesaid applications be
consolidated and proceed as one application
under no. 73422/2013.
7.
The relief sought against the first and second respondents are the
same, save in respect of the second respondent, the applicant
in
addition seeks payment by second respondent of an amount of R117
140.45 and interest thereon. It is common cause that the second
respondent registered with the applicant as role player during May
2012.
8. The applicant
attached copies of GG no 28329 of 23 December 2005 relating to notice
R1221 of 23 December 2005 and the schedule
attached thereto; notice
R1219 of 23 December 2005 and the schedule attached thereto; notice
R1220 of 23 December 2005 and the
schedule attached thereto to the
respective applications. Notice R1221 establishes the statutory
measures as set out in the schedules.
9. In addition, the
applicant also attached copies of GG no 31813 of 30 January 2009
relating to notice no. 55 of 30 January 2009
and the schedule
attached thereto; notice 57 of 30 January 2009 and the schedule
attached thereto to the respective applications.
10. In respect of
the second respondent, a copy of regulation No. 56 of 30 January 2009
was attached. No copy of this regulation
was attached to the
application in respect of first respondent, although an oblique
reference thereto appears in the founding affidavit.
11. The respective
clause 6 of the Schedule in respect of R1219 and R1220 and clause 7
of R 1221, all of 23 December 2005, provided
as follows:
“
7.
The statutory
measures described in this schedule shall
(a) apply within
the geographical area of the Republic of South Africa;
(b) come into
operation on the date of publication hereof and shall lapse after
four years from the date of implementation. ’’
12. The respective
clause 6 of the Schedule in respect of regulations no. 55 and no. 57,
and that of no. 56, all of 30 January 2009,
provided as follows:
6. The statutory
measures described in this schedule shall
(a) apply within
the geographical area of the Republic of South Africa;
(b) come into
operation on the date of publication hereof and shall lapse on 23
December 2013.”
13. When the matter
was called on Monday, 9 February 2015, counsel for the first
respondent advised that this court on 19 September
2014 granted a
final winding up order in respect of the second respondent. (A copy
of that order was attached to the Supplementary
Heads of Argument
filed on behalf of first respondent). It is common cause that no
opposing affidavit was filed on second respondent’s
behalf.
14. When the matter
was first called, counsel appearing were requested to address the
court in respect of two issues, namely, whether
the fact that the
aforementioned regulations lapsed after a stipulated period, i.e.
after four years in respect of the regulations
of 23 December 2005,
and by 23 December 2013 in respect of the regulations of 30 January
2009, the respective applications could
have been brought at the date
that the applications were so launched and/or whether the relief
sought was not academic in the circumstances.
15. To this end, the
matter stood down to Friday 13 February 2015 for counsel to prepare
an address to court on the aforesaid issues.
16. When the
regulations that relate to GG no 28329 of December 2005 are read
purposively and in context, it is clear that the regulations
only
endured for a period of 4 years and it is expressly stated therein
that the regulations shall lapse after that period. The
four-year
period expired at the latest by 24 December 2009.
17. Regulations 55,
56 and 57 clearly stipulated that the statutory measures referred to
in the Schedules shall lapse on 23 December
2013.
18. None of the
regulations contained any punitive provisions, should there be no
compliance therewith.
19. In my view, when
the regulations of 23 December 2005 lapsed by 24 December 2009, any
obligation imposed thereby on the respondents
ceased. The applicant
could not enforce compliance with the regulations after 24 December
2009.
20.
The Interpretation Act, no. 33 of 1957 defines
law”
as:
“
'law’
means any law, proclamation, ordinance
,
Act of Parliament
or other enactment having the force of law”
The
definition of “law” does not expressly mention
regulations and purposively it should be included either under the
reference to
‘
law
1
or
‘
other
enactment having the force of law’.
21. That Act in
section 12 provides:
"(1) Where a
law repeals and re-enacts with or without modifications, any
provision of a former law, references in any other
law to the
provision so repealed shall, unless the contrary intention appears,
be construed as references to the provision so enacted.
(2) Where a law
repeals any other law, then unless the contrary intention appears,
the repeal shall not-
(a) revive
anything not in force or existing at the time at which the repeal
takes effect; or
(b) affect the
previous operation of any law so repealed or anything duly done or
suffered under the law so repealed; or
(c) affect any
right, privileged, obligation or liability acquired, accrued or
incurred under any law so repealed; or
(d) affect any
penalty, forfeiture or punishment incurred in respect of any offence
committed against any law so repealed; or
(e)
affect any investigation, legal proceeding or remedy in respect of
any such right, privilege, obligation, liability, forfeiture
or
punishment as is in this subsection mentioned, and any such
investigation, legal proceeding or remedy may be instituted,
continued
or enforced, and any such penalty, forfeiture or punishment
may be imposed, as if the repealing law had not been passed.
”
22.
In this regard, Mr Moller, for first respondent, referred to
R
v Sutherland
1961(2)
SA 806 (AD). The Appellate Division, as it then was known, held at
814B-C in dealing with section 12 of the Interpretation
Act as
follows:
“
It
must be conceded that a law which expires automatically by effluxion
of time or, equally automatically, upon the happening of
a prescribed
event, other than an act of repeal, cannot be said to have been
repealed by another law within the meaning of that
expression in
section 12 (2) of the Interpretation Act.”
23. It follows from
the aforesaid judgment, by parity of reasoning, where the regulations
are not “repealed” but expire
by efflux of time any
enforcement thereof cannot be achieved after the regulation had
lapsed.
24.
The word
lapse
as
it is used in the aforementioned regulations, enjoys its normal
grammatical meaning, even if read purposefully.
25.
The Shorter Oxford Dictionary, the two volume version, defines the
word
lapse
as:
“
lapse,
noun,
1 the termination
of a right or privilege ...
lapse, verb,
1...
2...
3a law. Of a
right, privilege, etc.: become void, ...”
26.
I find support for the foregoing in
Association
of Meat Importers and Exporters et al v International Trade
Administration Commission et al
[2013]
4 All SA 253
(SCA) and in particular at [63] to [65], That matter
concerned the anti-dumping duties. At the aforesaid passages the
following
was said:
“
[63]
The regulations create a regime for the imposition of antidumping
duties from the time the regulations took effect.
Included in that
regime are the restrictions placed on their duration by articles 38.1
and 53. Both must be taken to have been inserted
for a purpose and
neither can simply be ignored if the language allows for each to be
given a meaning.
[64] Article 11
of the WTO Agreement does not contain an equivalent of regulation
38.1 and the reason is obvious. It does not purport
to direct the
means by which contracting countries should bring about the
termination of the anti-dumping duties. It merely obliges
them to
bring that about. This country has chosen to do so by the means
provided for in the two regulations.
[65] Regulation
38.1 reads then as follows:
‘
38.1
Definitive
anti-dumping duties will remain in place for a period of five years
form the date of the publication of the Commission’s
final
recommendation unless otherwise specified or unless reviewed prior to
the lapse of the five-year period’.
For convenience
of comparison I repeat regulation 53:
'53.1
Anti-dumping
duties shall remain in place for
a
period not
exceeding 5 years from the imposition or the last review thereof.
53.2
If a sunset
review has been initiated prior to the lapse of an anti-dumping duty,
such anti-dumping duty shall remain in force until
the sunset review
has been finalised. ’”
27. Section 12 of
the Interpretation Act does not find application in the present
matter in view thereof that the regulations under
consideration in
this matter were not “repealed”, but had lapsed due to
the efflux of time as expressly provided in
the said regulations.
Neither of the regulations contained a provision that any proceedings
instituted during the existence of
the regulation, in respect of such
regulation, would continue after the regulation had lapsed.
28. Counsel on
behalf of the applicant submitted that when read purposively, the
regulations impose “taxes” in the sense
of levies and
hence the lapsing of the regulations do not affect obligations to
continue to comply with the measures described
in the Schedule 1 to
the respective regulations. He further submitted that it was
comparable to the law relevant to Revenue, where
each year the
schedules lapse and are amended the following year. Counsel for the
applicant did not rely any authority for that
proposition. In the
present matter, the regulations were not amended, they lapsed as
expressly provided therein.
29. The fallacy of
counsel’s proposition lies in the fact that after the expiry of
the first set of regulations, there was
a hiatus before the second
set of regulations came into effect. If it were intended that the
regulations would continue after the
lapsing, the legislature would
have expressly stipulated to that effect. No such intention can be
implied on a purposive interpretation
of the regulations. The
regulations simply lapsed in terms of the expressed provisions
thereof.
30. It follows that
where the applications for enforcement of the said regulations, in
respect of the two respondents, were instituted
on 10 May 2010 and 12
December 2013 respectively, the regulations of 23 December 2005 had
lapsed, and no proceedings for the enforcement
of those regulations
could have been instituted during 2010 and 2012 respectively.
31. Accordingly, the
applicant cannot succeed in respect of the attempted enforcement of
the regulations of 23 December 2005.
32. In respect of
the regulations of 30 January 20009, those regulations, by the efflux
of time, lapsed on 24 December 2013. For
what has been said earlier
in this judgment, section 12 of the Interpretation Act does not apply
and in any event those regulations
were not “repealed”,
but had lapsed by efflux of time as expressly provided in the
regulations.
33.
On the expiry, i.e. the lapsing thereof, of the second set of
regulations on 23 December 2013 there were no longer any obligations
to be adhered to for what has been said earlier in this judgment. See
R v Sutherland,
supra.
34.
I find further support for the foregoing in
Association
of Meat Importers and Exporters, supra,
at
the passages referred to above. In that matter the relevant
regulation, [53], specifically provided that after the lapsing of
the
regulation at the relevant date, any sunset review that had been
initiated prior to the lapse of an anti-dumping duty, such
anti-dumping duty shall remain in force until the sunset review had
been finalised. No such similar provision appears in any of
the
regulations under consideration in this matter.
35. It follows that
the proceedings for the enforcement of the regulations of 30 January
2009 instituted prior to the lapsing of
the said regulations cannot
be continued with after the lapsing thereof on 23 December 2013.
36. Accordingly, the
applicant cannot succeed in the relief it seeks in respect of the
regulations of 30 January 2009.
37. There remains
the issue of the second respondent. It is common cause that a final
winding up order was granted by this court
on 19 September 2014. It
is trite that no litigation can continue against the second
respondent until a liquidator has been appointed.
38. In view of the
approach followed above, it would be an exercise in futility to
postpone the application against the second respondent
until the
appointment of a liquidator and thereafter to proceed against the
second respondent. To indeed proceed in this manner
would require
separating the two applications that were combined in terms of the
court order of 6 August 2014. Neither of the parties
requested such
separation and the applicant proceeded with its case against the
second respondent, albeit that the court was requested
to impose
compliance with the obligations of the second respondent upon the
first respondent premised upon a finding that the first
respondent
was the “driving mind” or “a/ter ego” of the
second respondent.
39. The applicant,
by proceeding in this manner, seeks to obtain information in order to
be in a position to formalise its claim
against the insolvent estate.
Such information can be obtained by other means and do not require an
order against the first respondent
under the present circumstances.
40.
Counsel for first respondent submitted that the applicant’s
aforesaid submissions are not supported by any legal principle.
Counsel for applicant did not rely on any such principle, other than
a reliance on the judgment of
ABC
LTD v Commissioner for the South African Revenue Service
2013
JDR 0339 (Tax). In this regard counsel for applicant specifically
relied upon the passage appearing at [46] to [50] of the
said
judgment.
41.
Counsel for applicant submitted with reference to the said passage of
the judgment of
ABC
LTD, supra,
that
the court must find that the first respondent was the “driving
mind” or
alter
ego
of
the second respondent and to hold the first respondent accountable to
submit the required information on behalf of the second
respondent.
42.
The argument in that regard was, as I understood Mr Vorster, the
first respondent throughout participated in negotiations subsequent
to the launching of the first application (albeit against the first
respondent in his personal capacity), had submitted certain
information and had undertook to comply with the prescribe
obligations and in 2012 had indeed registered the second respondent
as a role player in the milk industry. The court was requested to
infer through such conduct of the first respondent, that the
first
respondent was the “driving force” and
alter
ego
of
the second respondent.
43. Counsel for the
applicant further relied on the application for registration that was
lodged in May 2012 with the applicant
in respect of the second
respondent and specifically relied on the notes appearing as
footnotes at the bottom of the application
form. These notes read as
follows:
“
1
.
The business,
which has to register in terms of Regulation 1221 of 23 December
2005.
2. The most
senior official of the business/business unit or owner.
3. Person who
will be responsible for the submission of the monthly returns. ”
44.
The aforesaid notes related to the rubrics of
Name
of business, Head of business and Contact Person”
in
the registration form.
45. The said
regulations contained a description of the format of the application
form for the registration a role player. No mention
was made in the
regulations in respect of the information or requirements contained
in the aforementioned footnotes. Those are
simply administrative
notes. They have no legal binding effect.
46.
I do not agree with the interpretation advanced by counsel for
applicant premised upon the judgment of
ABC
Ltd, supra.
In
that matter there was direct evidence that the person who was
regarded as the
alter
ego
or
“driving mind” of the relevant company, although not the
person who had been assigned to attend to the submitting
of annual
revenue returns, was the
de
facto
person
who steered the company as if it was his own affairs. All relevant
persons or authorised personnel and other parties in and
to that
company acquiesced in what was done by the said person and never
refused to do what he had asked or instructed to be done
or had
objected thereto.
47.
In the present matter there is no such direct evidence that the first
respondent had regarded the second respondent as his own
affairs or
that he was simply obeyed in what was to be done, etc. The
applicant’s own letter of 23 September 2011 and the
first
respondent’s response thereto clearly points the other way. The
inference that the applicant seeks to be drawn from
the alleged
conduct of the first respondent can simply not be drawn on the facts
in this matter and as clearly contradicted by
the applicant’s
own letters. The
ABC
LTD, supra,
matter
is clearly distinguishable.
48. Neither the
Agricultural Products Act nor the regulations promulgated there under
provided that any officer of a corporate entity,
or other person in
its employ, is bound in his or her personal capacity in respect of
the statutory measures described in Schedule
1 to the relevant
regulations.
49. Even if the
aforementioned interpretation of the said regulations is wrong, the
applicant has not shown cause why the first
respondent is to be held
personally liable for the actions of the second respondent, it being
common cause that the second respondent
is the true role player.
50. It follows that
the applicant in the applications under case numbers 26014/10 and
73422/2013, consolidated under no 73422/2013,
cannot succeed
51. I grant the
following order:
(a) The applications
against first and second respondents instituted under numbers
26014/10 and 73422/2013, and consolidated under
no 73422/2013, are
refused with costs.
C J VAN DER
WESTHUIZEN
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION
On behalf of
Applicant: A Vorster
Instructed by:
Gildenhuys Malatji Inc.
On behalf of
Respondents: J Móller
Instructed by: Dawie
Beyers Inc.