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[2020] ZASCA 16
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Commissioner for the South African Revenue Service v United Manganese of Kalahari (Pty) Ltd (264/2019) [2020] ZASCA 16; 2020 (4) SA 428 (SCA); 82 SATC 444 (25 March 2020)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
In
the matter between:
Reportable
Case
no: 264/2019
COMMISSIONER FOR THE
SOUTH AFRICAN
REVENUE
SERVICE
APPELLANT
and
UNITED MANGANESE OF
KALAHARI
(PTY)
LTD
RESPONDENT
Neutral
citation:
C:SARS v United Manganese of Kalahari (Pty) Ltd
(264/2019)
[2020] ZASCA 16
(25 March 2020)
Coram:
CACHALIA, WALLIS, MBHA, DAMBUZA and SCHIPPERS JJA
Heard
:
13 March 2020
Delivered
:
25 March 2020
Summary:
Mineral and Petroleum Resources Royalty Act 28 of 2008
–
royalty calculation based on gross sales determined in terms of
s
6(2)
(b)
, read with s 6(3)
(b)
of the Royalty Act –
gross sales to be determined without regard to any expenditure
incurred in respect of transport, insurance
and handling of mineral –
meaning of ‘without regard to any expenditure’.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria (Meyer
J, sitting as court of first instance):
1
Paragraph 1 of the order of the High Court is altered to read as
follows:
‘
1 The
applicant is entitled to calculate its gross sales (in terms of
subsections 6(2) and 6(3) of the Mineral and Petroleum Resources
Royalty Act 28 of 2008 (the Royalty Act)) in respect of manganese
transferred by it in the 2010 and 2011 years of assessment, by
deducting:
1.1 any expenditure
incurred by it in respect of transport, insurance and handling of the
manganese after the manganese had been
brought to the condition
specified in Schedule 2 of the Royalty Act; as well as
1.2 any expenditure
incurred by it in respect of transport, insurance and handling to
effect the disposal of the manganese;
irrespective of
whether, in the price charged by it to purchasers of manganese, any
amount was separately specified for expenditure
incurred by it in
respect of transport, insurance and handling under either of
paragraphs 1.1 or 1.2.’
2
The appeal is otherwise dismissed with costs, such costs to include
those consequent upon the employment of two counsel.
JUDGMENT
Wallis
JA (Cachalia, Mbha, Dambuza and Schippers JJA concurring)
[1]
In exchange for the right to extract portion of South Africa’s
mineral wealth from our soil and dispose of it for their
own profit,
mining companies pay royalties to the National Revenue Fund in terms
of s 2 of the Mineral and Petroleum Resources
Royalty Act 28 of 2008
(the Royalty Act). The royalty payable is determined in accordance
with the formula in s 4(2) of the Royalty
Act. One of the elements in
calculating the formula is the mining company’s gross sales.
These are to be determined in accordance
with s 6 of the Royalty Act.
This appeal concerns the proper method of determining a mining
company’s gross sales in accordance
with that section as it
stood in 2010 and 2011.
[2]
The
respondent, United Manganese of Kalahari (Pty) Ltd (UMK), is the
fourth largest manganese miner in South Africa. It conducts
its
mining operations in the Northern Cape and sells manganese as an
unrefined mineral resource both locally and overseas. In respect
of
local sales purchasers take delivery of the manganese at the mine and
no issues arise in relation to such sales. Its sales to
foreign
purchasers are made on either an FOB
[1]
or CIF
[2]
basis. These sales
give rise to the present dispute between UMK and the appellant, the
Commissioner, South African Revenue Service
(SARS).
[3]
UMK rendered royalty returns to SARS in respect of the 2010 and 2011
tax years. In 2012 SARS commenced an audit of those returns
during
the course of which it appeared that UMK and SARS had different
approaches to the determination of the amount of UMK’s
gross
sales for the purpose of calculating the royalties due by UMK. In
September 2016 UMK approached the Gauteng Division of the
High Court,
Pretoria, seeking declaratory relief in regard to the proper method
of determining the amount of its gross sales. Meyer
J granted a
declaratory order and refused leave to appeal. Such leave was granted
on application to this court.
[4]
In its
opposing affidavit, in argument before the high court, and in its
heads of argument in this court, SARS argued that UMK’s
application was premature as the audit process had not yet been
finalised. It contended that UMK should have awaited the outcome
of
that process and then pursued its internal remedies under the
Tax
Administration Act 28 of 2011
, by way of objection and appeal against
any assessment with which it did not agree. Alternatively, it
contended that it was inappropriate
for UMK to seek relief by way of
a declaratory order. However, after the parties’ attention was
drawn to a recent judgment
of this court
[3]
dealing with a similar argument, we were informed that SARS no longer
persisted with these points and would confine its arguments
to the
legal issue raised by UMK concerning the proper interpretation of the
relevant provisions of the Royalty Act.
THE
DISPUTE
[5]
When UMK rendered its 2010 and 2011 returns, s 6 read in relevant
part as follows:
‘
(2)
Gross sales in respect of an unrefined mineral resource transferred─
(
a
)
as mentioned in paragraph (
a
) of the definition of ‘transfer’
in section 1 in the condition specified in Schedule 2 for that
mineral resource is
the amount received or accrued during the year of
assessment in respect of the transfer of that mineral resource …
…
(3)
(b)
For purposes of subsection (2), gross sales is determined without
regard to any expenditure incurred in respect of transport, insurance
and handling of an unrefined mineral resource after that mineral
resource was brought to the condition specified in Schedule 2
for
that mineral resource or any expenditure incurred in respect of
transport, insurance and handling to effect the disposal of
that
mineral resource.’
[6]
Some
aspects of this were not in dispute. Thus, both parties correctly
accepted that the expression ‘received or accrued’
in s
6(2)
(a)
bore
the same meaning as the corresponding expression in the definition of
‘gross income’ in s 1 of the Income Tax Act
58 of
1962.
[4]
Accordingly gross sales
included every amount actually received by UMK, or to which UMK
became entitled, in each of the years with
which we are concerned.
UMK and SARS also agreed at what point the manganese ore was brought
to the condition specified in Schedule
2 of the Royalty Act.
[5]
[7]
The focus then turned to the expression ‘without regard to any
expenditure incurred in respect of transport, insurance
and handling’
after the manganese ore was brought to the specified condition. The
dispute related to the proper meaning and
effect of that provision in
determining UMK’s gross sales for royalty purposes. By the end
of the hearing in this court,
the difference between the parties in
that regard was narrow. SARS contended that where the price charged
by UMK to its customers
specified separate amounts for transport,
insurance and handling (TIH costs) of the ore in arriving at the
global price to be paid,
the amounts so specified should be deducted
in determining the amount of gross sales on which royalties would be
paid. UMK said
that it was irrelevant whether the TIH costs were
specified as separate line items in the determination of the price.
What mattered
was not the price charged to customers, but whether
such costs had in fact been incurred by UMK in either of the
circumstances
described in s 6(3)
(b)
. If they had been
incurred, then a deduction fell to be made for such costs in
calculating its gross sales for royalty purposes.
DISCUSSION
[8]
It
is unnecessary to rehearse the established approach to the
interpretation of statutes set out in
Endumeni
[6]
and
approved by the Constitutional Court in
Big
Five Duty Free
.
[7]
It
is an objective unitary process where consideration must be given to
the language used in the light of the ordinary rules of
grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material known
to those
responsible for its production. The approach is as applicable to
taxing statutes as to any other statute.
[8]
The inevitable point of departure is the language used in the
provision under consideration.
[9]
No
difficulty arose in determining the amounts received or accrued by
UMK from sales of manganese in the condition specified in
Schedule 2
to the Royalty Act.
[9]
This was
its income from disposing of the minerals it extracted. The problem
lay with the requirement to ‘have regard to
any expenditure
incurred in respect of transport, insurance and handling’ of
the mineral. An immediate difficulty arose because
TIH costs are
expense items, not part of the receipts or accruals constituting
gross sales. Receipts and accruals and expenditure
on TIH costs fell
on opposite sides of the ledger. Despite this, s 6(3)
(b)
directed
the taxpayer to determine its gross sales
without
regard
to these three items of expenditure. This was not optional. It was
part of the section’s prescription of the manner
in which gross
sales were to be determined for royalty purposes. It could not be
disregarded. How then was the taxpayer to have
regard to TIH costs in
determining its gross sales?
[10]
The
answer, as SARS accepted, was that, when disregarding the specified
expenditure, the taxpayer was obliged to make a deduction
from the
receipts and accruals constituting its gross sales. Mr du Plessis,
who deposed to the answering affidavit on SARS’
behalf,
[10]
said:
‘
The
words ‘without regard to’ must correctly be understood to
mean that a taxpayer must disregard any costs actually
spent after
the point at which the mineral reaches the condition specified. In
other words, if the taxpayer spent any money on
transport, insurance
or handling
after
the point of condition specified, it is
required to disregard, or not take into account, such costs in
calculating gross sales.’
[11]
UMK’s
domestic sales were on FOR
[11]
terms. Purchasers collected the manganese from the mine and paid for
it to be transferred from there,
whether
by rail or road. No TIH costs were incurred in relation to such
sales. The position was different in regard to international
sales.
UMK incurred expenditure in relation to transport, insurance and
handling of the manganese because these sales were on either
FOB or
CIF terms. In respect of FOB sales, UMK incurred the costs of
arranging for the transport of the manganese ore by road or
rail to
the ports of Durban or Port Elizabeth and for it to be loaded onto
ships in accordance with the instructions of the purchasers.
In the
case of CIF sales, it was obliged to secure appropriate vessels for
the carriage of the cargo to its destination, either
by booking space
on a bulk carrier or by way of the charter market; to pay the freight
or charter hire; to insure the cargo whilst
in transit; and discharge
it at its destination. UMK sought to disregard these TIH costs in
determining its gross sales for royalty
purposes, by deducting them
from the amounts it received or that accrued to it in the years in
question.
[12]
SARS accepted that UMK incurred expenditure in respect of TIH costs.
Purely linguistically therefore, it was difficult to understand
on
what basis it contended that UMK was not entitled to deduct the TIH
costs it had actually incurred from its receipts and accruals.
SARS
said that the expression ‘without regard to’ meant that
they should be ‘disregarded’ by deducting
them from the
receipts and accruals. That being so, it seemed to follow naturally
from the words of s 6(3)
(b)
that the TIH costs fell to be
deducted from UMK’s receipts and accruals.
[13]
SARS’ stance was described by Mr du Plessis in the passage from
his affidavit immediately following that quoted in para
[10]. It
read:
‘
If,
of course the taxpayer did not actually include such costs in the
computation of gross sales, there is no need for a deduction
of these
expenses. In other words, if the sales price received by the
Applicant from its customers was simply a market price and
was not
based upon the costs, which were incurred in respect of transport,
insurance and handling, then such costs may not be deducted
by the
Applicant from its gross sales.’
Later
in his affidavit, Mr du Plessis said:
‘
I
point out that the relevant question is not whether the Applicant
actually incurred the costs, but rather whether the Applicant
in fact
incorporated those costs into the gross sale price or not. …
[T]he amount spent is irrelevant unless considered
in relation to the
condition specified and whether the amount was incorporated into the
gross sale price as contemplated by the
Royalty Act. Any expenditure
for transport, handling and insurance after the condition specified
point must be disregarded for
purposes of calculating gross sales in
terms of section 6(3) of the Royalty Act. To the extent that the
sales price, and thus gross
revenue, has not been determined by
having regard to such costs, there is nothing to disregard.’
[14]
It is impossible to find any basis for this qualification in the
language of s 6(3)
(b)
. The section said that ‘any
expenditure’ incurred in respect of TIH costs should be
disregarded. It said nothing about
the manner in which UMK should
determine the prices to be paid by its customers, much less did it
require that those prices should
specify separately amounts to be
charged for transport, insurance and handling of the mineral. All it
said was that expenditure
incurred in respect of TIH costs should be
disregarded. That wording may have been clumsy and inapt to perform
the intended function,
because it required expenditure to be
disregarded when dealing with receipts and accruals, but once it was
accepted, as SARS did,
that this involved deducting the expenditure
in question from the receipts and accruals, any difficulty arising
from the wording
evaporated.
[15]
SARS’ approach was not a sensible construction of the section.
In essence it was this. If UMK charged its customer in
a CIF sale
$6.00 per ton, and specified in the contract that $1 of the price
reflected the cost of transport from the mine to the
port; freight or
charter hire for the voyage; insurance; and loading and discharge
costs, then UMK’s gross sales for royalty
purposes on that
contract would be made at $5 per ton. If it simply charged $6 per ton
and incurred expenditure of $1 per ton on
those self-same costs, its
gross sales on the contract would be $6 per ton, not because it had
not incurred the expenditure, but
because it had not specified it
separately in its sales contract. No conceivable reason existed for
making that distinction.
[16]
A consideration of the context of the Royalty Act and its provisions
in regard to payment of royalties points decisively away
from the
construction advanced by SARS. A brief word about context in regard
to statutory interpretation may not be out of place
in the light of a
recent suggestion in a minority judgment that:
‘
Context
is fact-specific and can be applied in the interpretation of
contracts and like documents, but not of statutes’.
[12]
The
judgment said that
Endumeni
had
suggested,
[13]
in reliance on
a passage from
KPMG
v Securefin
,
[14]
that there is ‘no distinction in the interpretation of
contracts, statutes and other documents’. That misconstrues
what was said in
Endumeni
.
It summarised the general approach to the interpretation of
documents. The footnote reference to
Securefin
was
to the proposition that the rules of admissibility of evidence in the
interpretation of documents do not change depending on
the nature of
the document, whether statute, contract or patent. That was cited
because, if common evidential rules apply to the
interpretation of
all documents,
it
logically
follows
that
the
basic
approach
to
interpretation
will not vary depending on whether they are contracts, statutes or
other documents. The latter proposition was not
novel. In formulating
his ‘golden rule’ of interpretation in
Gray
v Pearson
,
[15]
a case about the construction of a will, Lord Wensleydale said the
rule applied in ‘construing wills, and indeed statutes
and all
written instruments’. Context is fundamental in approaching the
interpretation of all written instruments, but there
are differences
in context with different documents including the nature of the
document itself. Legislation is different in character
from
contracts, and a contract formulated carefully by lawyers after
lengthy negotiations will differ from one scribbled by laypeople
on a
page torn from a notebook.
[17]
The
difference in the genesis of statutes and contracts provides a
different context for their interpretation. Statutes undoubtedly
have
a context that may be highly relevant to their interpretation. In the
first instance there is the injunction in s 39(2) of
the Constitution
that statutes should be interpreted in accordance with the spirit,
purport and objects of the Bill of Rights.
Second, there is the
context provided by the entire enactment.
[16]
Third, where legislation flows from a commission of enquiry,
[17]
or the establishment of a specialised drafting committee,
[18]
reference to their reports is permissible and may provide helpful
context. Fourth, the legislative history may provide useful
background in resolving interpretational uncertainty.
[19]
Finally, the general factual background to the statute, such as the
nature of its concerns, the
social
purpose to which it is directed and, in the case of statutes dealing
with specific areas of public life or the economy, the
nature of the
areas to which the statute relates, provides the context for the
legislation. It follows that context is as important
in construing
statutes as it is in construing contracts or other documents and the
contrary suggestion is incorrect.
[20]
In this regard, since drafting this, I have had the advantage of
seeing in advance a copy of Swain JA’s judgment in
Telkom
SA SOC Limited v The Commissioner for the South African Revenue
Service
[2020]
ZASCA 19
, which is to be delivered today, and agree with his analysis
of
Daikin
in
paras 10 to 17 thereof.
[18]
The
background to the Royalty Act is that South Africa is a country with
vast mineral wealth, which is exploited primarily by private
enterprise in a heavily regulated environment. The mining industry
has always formed a major part of the South African economy.
Royalties are payable in return for the right to exploit these
mineral resources. As emerges from the two schedules to the Royalty
Act, while some commodities are refined in this country, others are
exported after only limited beneficiation. Most of this is
shipped in
bulk.
[21]
The sample contracts
put up by UMK, which were not suggested to be unrepresentative of
contracts for the sale of bulk minerals,
reflect trading denominated
in an international currency, the US Dollar.
[22]
These contracts were concluded on FOB or CIF terms and there is no
reason not to accept that this would be common practice. The
choice
of one or the other allocates responsibility for transporting the
mineral from country of origin to the country of the purchaser.
Prices are fixed in dollars per ton FOB or CIF. Under such contracts
the purchaser will not be interested in the TIH costs to be
incurred
by the seller, but will want to fix a global price to be paid for the
minerals up to the point of delivery.
[19]
This very basic information must have been known to those responsible
for this legislation, in particular the Department of
Finance, SARS
and the Department of Minerals and Energy Affairs. The annual South
African Mineral Industry reports issued by the
Department of Mineral
Affairs demonstrate that the Department is thoroughly familiar with
all mining activities and the basis upon
which trade in minerals
occurs. It is proper then to approach the interpretation of s 6 on
the basis that those responsible for
drafting the legislation did so
in the light of their knowledge of common, if not invariable, trading
patterns. It can be accepted
that they were aware that many contracts
for the sale of minerals would be concluded at fixed prices on FOB or
CIF terms, without
the cost of transport, insurance and handling
being separately specified. There is nothing to indicate why then, in
providing that
expenditure on TIH costs should be disregarded in
determining the amount of gross sales, they would have in mind only
those contracts
– potentially very few in number – in
which the price was divided into an amount for the mineral in
question and separate
amounts for transport, insurance and handling.
No sensible reason existed, and none has been advanced in the
affidavits or argument,
for distinguishing between the two
situations.
[20]
The purpose of the Royalty Act is to secure the payment of royalties
on the value of minerals extracted. Even if there are
situations in
which mineral extraction and transfer to a third party, which is the
event attracting the royalty, occurs without
incurring TIH costs, in
very many if not the vast majority of cases, such costs are incurred
in order to dispose of the minerals.
The evident purpose of s 6(3)
(b)
was that the extractor would not be burdened by paying royalties
on amounts expended on TIH costs and recovered as part of the price
paid for the minerals. On SARS’ case that is what happens when
these costs are specified as separate components of the price
of the
mineral. It has provided no explanation for interpreting the section
as meaning that where the same minerals are sold at
the same global
price, without a separate specification of TIH costs as components of
the price, those costs should not be deducted.
[21]
Lastly, SARS’ contentions disregard the statutory history. In
its original form the section said that gross sales should
be
determined ‘without regard to any amount received or accrued
for the transport, insurance and handling’ of the mineral.
That
made little sense because those were not revenue items and hence,
they would not be received or accrued in the same way as
revenue
items. They were expenses that would be incurred. The section was
amended to the wording before us with effect from March
2010. Since
then it has been further amended in 2019 by the deletion of the words
‘without regard to expenditure incurred’
and their
replacement by ‘after deducting any expenditure actually
incurred’. In argument SARS conceded that the effect
of this
was that all TIH costs incurred would be deductible in determining
the amount of gross sales, irrespective of whether they
had been
separately specified as components of the price.
[22]
It is illuminating to consider the explanatory memorandum that
accompanied the Bill embodying this amendment dated 16 July
2018. It
read:
‘
The
proposed amendment in subsection (3)
(b)
seeks to clarify the
original policy intent. When the Mineral and Petroleum Resource
Royalty Act was introduced in 2008, the policy
intention was clear
regarding the definition of the tax base. The tax base was generally
defined both in the legislation and the
explanatory memorandum as
gross sales excluding the costs of transportation, insurance and
handling of the final product or mineral
between the seller and the
buyer as this would unintentionally increase gross sales leading to a
higher royalty tax payable. In
2009, additional clarification was
made in s 6(3) of the Mineral and Petroleum Resource Royalty Act
dealing with gross sales. The
2009 changes resulted in the policy
intent regarding the definition of gross sales not to be clearly
expressed in the text of the
legislative provision even though the
policy intent was clear in the explanatory memorandum.
In
order to give certainty regarding policy intent, it is proposed that
the meaning of gross sales be clarified in the legislation
to take
into account the policy rationale which is explained when the Mineral
and Petroleum Resource Royalty Act was introduced
by reverting back
to the original wording prior to the 2009 amendment.’
[23]
The Bill was not finalised in 2018 and when it returned to Parliament
it embodied the amendments described in para [20]. The
explanatory
memorandum dated 17 January 2019, said:
‘
These
amendments seek to provide clarity to both taxpayers and SARS
regarding the meaning of the tax base for purposes of calculating
the
royalty (the tax base is gross sales after deducting expenditure
actually incurred in respect of transport, insurance and handling
of
the disposed unrefined mineral resource or the disposed refined
mineral resource).’
[24]
Where
Parliament has clearly shown by later amending legislation what was
meant by the earlier legislation under amendment and the
amending
legislation is passed explicitly for the purpose of clarifying
that
meaning,
it
is
permissible
as
an
aid
in
interpretation
to
have regard to the meaning ascribed by the later legislation to its
predecessor.
[23]
That is not
to say that the court is not exercising its proper function of
interpreting the legislation. Counsel for SARS correctly
said that if
the prior version of s 6(3)
(b)
could
not bear the meaning ascribed to it in the explanatory memoranda
quoted above then it was not open to this court to remedy
the
legislature’s earlier deficiencies. However, given that,
without referring to the memoranda, I have arrived at the conclusion
that the section must bear that meaning, the subsequent amendment
lends force to that conclusion.
[25]
For those reasons the appeal must fail. However, there was a
difficulty with the wording of the declaratory order granted by
the
high court and it is necessary to alter it to reflect correctly the
court’s finding. In the result the following order
is granted:
‘
1
Paragraph 1 of the order of the High Court is altered to read as
follows:
‘
1 The
applicant is entitled to calculate its gross sales (in terms of
subsections 6(2) and 6(3) of the Mineral and Petroleum Resources
Royalty Act 28 of 2008 (the Royalty Act)) in respect of manganese
transferred by it in the 2010 and 2011 years of assessment, by
deducting:
1.1 any expenditure
incurred by it in respect of transport, insurance and handling of the
manganese after the manganese had been
brought to the condition
specified in Schedule 2 of the Royalty Act; as well as
1.2 any expenditure
incurred by it in respect of transport, insurance and handling to
effect the disposal of the manganese;
irrespective of
whether, in the price charged by it to purchasers of manganese, any
amount was separately specified for expenditure
incurred by it in
respect of transport, insurance and handling under either of
paragraphs 1.1 or 1.2.’
2
The appeal is otherwise dismissed with costs, such costs to include
those consequent upon the employment of two counsel.’
________________________
M
J D WALLIS
JUDGE
OF APPEAL
Appearances
For
appellant: C D Loxton SC (with him N Rajab-Budlender)
Instructed
by: Klagsbrun Edelstein Bosman De Vries Inc, Pretoria;
Symington
de Kok Attorneys, Bloemfontein
For
respondent: J J Gauntlett SC (with him P A Swanepoel SC)
Instructed
by: Edward Nathan Sonnenbergs Inc, Johannesburg; McIntyre Van der
Post, Bloemfontein.
[1]
Free on board.
[2]
Cost, insurance, freight.
[3]
Commissioner for the South African Revenue Service v Langholm Farms
(Pty) Ltd
[2019] ZASCA 163
;
[2019] JOL 46353
(SCA) paras 7-10.
[4]
Lategan v Commissioner for Inland Revenue
1926 CPD 203
at 207-210;
Commissioner for Inland Revenue v People’s Stores (Walvis Bay)
(Pty) Ltd 1990 (2) SA 353 (A).
[5]
Schedule 2 dealt with the grade of the ore and its required and
permitted chemical components.
[6]
Natal Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 4 SA 593
(SCA) para 18.
[7]
Airports Company South Africa v Big Five Duty Free (Pty) Ltd and
Others
[2018] ZACC 33
;
2019 (5) SA 1
(CC) para 29.
[8]
Commissioner for the South African Revenue Services v Bosch and
Another
[2014] ZASCA 171
;
2015 (2) SA 174
(SCA) para 9.
[9]
Schedule 2 deals with unrefined minerals and specifies in relation
to manganese that this is ore with a manganese content between
37%
and 48% and a silicon and aluminium content of less than 11%.
[10]
Vol 4, p 523, para 15.
[11]
Free on rail.
[12]
In the minority judgment in Commissioner of the South African
Revenue Services v Daikin Air Conditioning South Africa (Pty) Ltd
[2018] ZASCA 66
;
80 SATC 33
para 31.
[13]
Endumeni para 18, fn 14.
[14]
KPMG Accountants (SA) v Securefin Ltd and Another
2009 (4) SA 399
(SCA) para 39.
[15]
Gray and Others v Pearson and Others (1857) HL Cas 61.
[16]
Hoban v ABSA Bank Ltd t/a United Bank and Others
1999 (2) SA 1036
(SCA) para 20.
[17]
Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering
(Pty) Ltd
1986 (2) SA 555
(A) at 562D-563B.
[18]
As occurred with the
Labour Relations Act 66 of 1995
. See
Explanatory Memorandum by the Ministerial Task Team 1995 ILJ 278 and
Sidumo and Another v Rustenberg Platinum Mines Ltd
and Others
[2007]
ZACC 22
;
2008 (2) SA 24
(CC) para 94, fns 100- 102.
[19]
Santam Insurance Ltd v Taylor
1985 (1) SA 514
(A) at 526I-527B.
[20]
See M Wallis ‘Interpretation Before and After Natal Joint
Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA)’ (2019) PER/PELJ (22) 1 at 17-20.
[21]
See the description of iron ore exports at Saldanha in Transnet Ltd
v The Owner of the Alina II
[2011] ZASCA 129
;
2011 (6) SA 206
(SCA)
para 2. As to bulk carriage of grain shipments see Afgri Grain
Marketing (Pty) Ltd v Trustees for the time being of Copenship
Bulkers A/S (in liquidation) and Others
[2019] ZASCA 67
; [209]
3 All
SA 321
(SCA).There are specialised terminals for the loading of bulk
cargoes including a variety of minerals at Durban, Saldanha and
Richards Bay.
[22]
The South African Mineral Industry Report 2017/2018 published by the
Department of Mineral Affairs Table 12, p26 reflects most
mineral
prices, including that for manganese, as being denominated in
dollars, the principal international trading currency.
See
https://www.dmr.gov.za/LinkClick.aspx?fileticket=PClz-cRGkyg%3d&portalid=0.
[23]
Patel v Minister of the Interior and Another
1955 (2) SA 485
(A) at
493 A-D, approved and followed in National Education Health and
Allied Workers’ Union v University of Cape Town
and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC) para 66.