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[1986] ZASCA 14
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South African Transport Service v Olgar (524/85) [1986] ZASCA 14 (13 March 1986)
THE SOUTH AFRICAN TRANSPORT-SERVICES
Appellant
and
ISMAIL
AHMED OLGAR
1st Respondent
THE CHAIRMAN OF
THE NATIONAL
TRANSPORT COMMISSION
2nd Respondent
Case No
: 254/85 mp
I
N THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
THE SOUTH AFRICAN TRANSPORT SERVICES
Appellant
and
ISMAIL AHMED OLGAR
1st Respondent
THE CHAIRMAN OF
THE
NATIONAL TRANSPORT COMMISSIO
N 2nd Respondent
CORAM
: CORBETT, JOUBERT, HOEXTER, BOSHOFF, JJA
et
.NESTADT,
AJA
HEARD:
27 February 1986
DELIVERED
: 13 March 1986
JUDGMENT
HOEXTER, JA
2.
HOEXTER
, JA,
This is an appeal involving the interpretation of the
provisions of sec 15(2) of the Road Transportation Act, 74 of 1977, as amended
by sec 10 of Act 91 of 1980 ("the Act"). The appellant is the South African
Transport Services. The first respondent, to whom I shall
refer as "the
applicant", carries on the business of transportation by road. The second
respondent is the Chairman of the National
Transport Commission. There is no
appearance by or on behalf of the applicant or the second respondent.
The applicant applied to a Local Transportation Board ("the Board") for four
public permits authorising him to undertake road transportation
in the
circumstances contemplated by sec 15(2)(a) of the Act, that is to say, within,
an area or over a route or between two points
already served by existing
transportation facilities. The Board refused all four applications. Against the
Board's refusals
the
3. the applicant appealed to the National Transport Commission ("the
Commission"). The Commission dismissed his appeal, whereupon
the applicant
instituted proceedings in the Durban and Coast Local Division against the
Chairman of the Commission and the appellant.
By way of review the applicant
sought an order overruling and reversing the decision of the Commission. The
appellant resisted the
application which was heard by DIDCOTT, J.
During the review proceedings the learned Judge was invited to give a
preliminary ruling affecting two rival interpretations of sec
15(2)(a) of the
Act respectively advanced by the applicant and the appellant. In the judgment of
the Court below the interpretation
espoused by the applicant is labelled "the
first interpretation" while the interpretation urged on behalf of the appellant
is described
as "the second interpretation". The same nomen= clature will be
followed in this judgment. The effect
of
4.
of each interpretation will be considered shortly. Suffice it at this stage
to say that in the Court below it was agreed between the
parties that in the
event of a ruling in favour of the first interpretation the review would be
upheld, with costs; whereas if the
Court should accept the correctness of the
second interpretation the proceedings would be adjourned and the applicant
ordered to
pay the costs of the initial hearing. Having heard argument the
learned Judge preferred the first interpretation. Accordingly the
decision of
the Commission was set aside and it was directed to hear and determine the
applicant's appeal afresh. The appellant was
ordered to pay the costs of the
proceedings including the costs incurred by the applicant in using two counsel.
The judgment is reported
in 1985(3) SA 1030(D).
Against the whole of the order so made by DIDCOTT, J the appellant sought
from the Court below leave
to
5. to appeal to this Court. On the understanding that the applicant
would not contest the appeal the appellant was agreeable to leave
being granted
subject to the condition (the imposition whereof is sanctioned by sec 20(5) of
the Supreme Court Act, 59 of 1959) that
the costs of the appeal be borne by the
appellant. Indeed, the appellant informed the Court below that it had been
agreed that in
the event of a successful appeal the appellant would pay one half
of the taxed costs so far incurred by the applicant in the review
proceedings.
The learned Judge was satisfied that an appeal had reasonable prospects of
success but, since the grant of leave to appeal against
the order made by him
would result in the stay of such order, he was disturbed by the possibility that
the resultant delay might
prejudice the applicant. In order to avoid such a stay
the learned Judge decided to grant the appellant leave to appeal only against
the order of costs. The appellant was dissatisfied with leave to appeal in
this
truncated
6.
truncated form and accordingly it petitioned the CHIEF JUSTICE. In the result
this Court granted the appellant leave to appeal against
the whole of the
judgment and order of the Court below.
Subsec 15(1) of the Act provides that in deciding whether an application for
the grant of a public permit should be granted or refused
the Commission or a
Board should take into consideration various matters therein detailed. I quote
in full the provisions of subsec
15(1):
"(a) the extent to which the transportation
to be provided is necessary or desirable in the public interest;
(b) the requirements of the public for
transportation within the area or
along
the route or between the points in or over
or between which the
applicant proposes
to operate;
(c) the existing transportation facilities
available to the public in that
area or
over that route or between those points,
whether or not there
will be a saving in
in the consumption of
petro
leum
fuel
resulting from the intended road transporta
tion and,
if there will be no such saving
,
whether or not justification exists,
in all
the circumstances of the case, for the
consu
mption of
petroleum
f
uel which
t
he
intended road transportation
will occasion;
(My underlining)
(d) any
7.
(d) any new railway service which has been planned or is contemplated for the
conveyance of persons within that area or over that
route or between those
points;
(e) the co-ordination of all forms of trans= portation, including transportation
by rail, on an economically sound basis and with
due regard to the public
interest.;
(f) the ability of the applicant to provide in a manner satisfactory to the
public the transportation for which such permit is sought;
(g) any previous conviction of the applicant for an offence in terms of this
Act, and any other failure by the applicant as an operator
of road
transportation;
(h) the existence of any prohibition, limitation or restriction imposed by law
on the use of motor vehicles in any area or on any
street or road on the route
on which the applicant proposes to operate;
(i) any representations duly submitted in connection with the application;
(j) the class of persons to which the applicant belongs and the class or classes
of persons to be served by the transportation service
for which such permit is
sought;
(k) any recommendation made by the committee appointed under section 2(h);
(1) any report or document drawn up as a result of an inquiry contemplated in
section 3(l)(g);
(m) any
8.
(m) any other factors which, in the opinion of the commission or the board
concerned, may affect the question whether it is desirable
to grant such
application or to attach or vary any such condition or
requirement.
Paragraph (a) of subsec 15(2) of the Act governs an
application for a public permit to undertake road transportation -
"...within an area or over a route or between two or more points already
served by existing transportation facilities."
Paragraph (b) of subsec 15(2) governs an application for a public permit to
undertake road transportation -
"....in circumstances not contemplated in paragraph (a)."
Paragraphs (a)
and (b) of subsec 15(2) further provide that in relation to proof of certain
matters the
onus
shall be on the applicant. Under paragraph (a) an
applicant has the
onus
of proving that -
"(i) such
9.
"(i) such existing transportation facilities are not satisfactory and sufficient
to meet the transportation requirements of the public
in that area or along that
route or between those points;
and
(iA) he has the ability to provide in a manner satisfactory to the public the
trans= portation for which the permit is sought;
and
(ii) the tariff at which payment for such existing transportation facilities is
to be made is unreasonable : Provided that railway
tariffs shall, for the
purposed of this section, be deemed to be reasonable;
or
(iii) having regard to the circumstances, it
will be expedient in the public interest to grant him the permit;
or
(iv) he belongs to the same class as the majority of the persons to be served by
the transportation service for which the permit
is sought, and that it is in the
interests of such persons desirable to grant him the
permit."
Under paragraph (b) an application has the
onus
of proving that -
"(i) there
10.
"(i) there is a need for such transportation within the area or along the route
or between the points in or over or between which
he proposes to undertake such
transportation;
and
(ii) he has the ability to provide in a manner satisfactory to the public the
transporter-tion for which such permit is sought."
Paragraph (a)
of sec 15(2) of the Act is the product of indifferent draftmanship. It
represents a typical example of the confusion
likely to result when a draftsman
tries to lump together indiscriminately in a single paragraph both essential
requirements and purely
alternative requirements. So awkward is the arrangement
of its sub-paragraphs that upon ordinary linguistic treatment paragraph (a)
is
susceptible of the two very different constructions discussed in the judgment of
the Court below. The first interpretation postulates
that the disjunctive
particle "or" connecting sub-paragraphs (ii) and (iii) serves to introduce (iii)
as
an
11.
an alternative not merely for (ii) but as an alternative for the three
preceding sub-paragraphs (that is to say, (i), (iA) and (ii)
taken together as a
unit); and that the disjunctive particle "or" connecting sub-paragraphs (iii)
and (iv) serves to introduce (iv)
as an alternative either for (i), (iA) and
(ii), taken conjointly, or as an alternative for (iii) standing alone. On the
other hand
the second interpretation postulates that the disjunctive particle
"or" connecting sub-paragraphs (ii) and (iii) serves to introduce
(iii) as an
alternative only for (ii); and that the disjunctive particle "or" connecting
sub-paragraphs (iii) or (iv) serves to introduce
(iv) as an alternative only for
either (ii) or (iii).
The effect of the first interpretation is that an applicant for a public
permit may discharge the
onus
created by paragraph (a) in any one of the
three following ways: (1) he may prove conjunctively (i), (iA) and (ii); or (2)
he may
prove simply (iii); or (3) he may prove simply (iv).
The
12. The effect of the second interpretation is that an applicant for
a public permit may discharge the
onus
created by paragraph (a) in any
one of the three following ways: (1) he may prove conjunctively (i), (iA) and
(ii); or (2) he may
prove con= junctively (i), (iA) and (iii); or (3) he may
prove conjunc= tively (i), (iA) and (iv). It follows that if the first
interpretation
is correct an applicant is not obliged to prove (i) or (iA). He
is able to discharge the
onus
created by paragraph (a) by proof of no
more than either (iii) or (iv); whereas upon acceptance of the second
interpretation an applicant
is saddled with a heavier burden. Before discharging
the
onus
he has to establish no less than three of the sub-paragraphs:
proof of both (i) and (iA) is an invariable requirement; in addition
whereto he
must prove any one of (ii) or (iii) or (iv).
Both before the Board and upon
appeal to the Commission the applicant's case was that he had proved (i), (iA)
and (iii). The Commission
held that the applicant had
not
13. not discharged the
onus
of proving (i); and it took the
view that such failure operated decisively against the applicant. The Commission
found it unnecessary
to decide whether the applicant had proved (iA) or (iii).
The resulting situation was correctly summarised thus (at 1032 H/J) in
the
judgment of the Court
a quo:
-
"To bother about proof under subpara (iA) was indeed unnecessary, once the
Commission had found none under subpara (i). The two subparagraphs
go together,
according to either interpretation of the paragraph, with the result that both
sets of circumstances must be proved
or neither need be. Whether or not the
Commission had the occasion to deal with the applicant's case under subpara
(iii), on the
other hand, depended on which interpretation happened to be the
true one. If the second was such, the Commission was undoubtedly
right in
viewing a fall at the hurdle of subpara (i) as the end of the matter. If the
first prevailed, however, the view it took
was plainly wrong. The question of
proof under subpara (iii) then remained a live issue which it had to consider,
and its failure
to do so meant that its mind was not applied fully and properly
to the appeal. On that hypothesis its decision cannot
stand."
At
14.
At this juncture it is convenient to look at the legislative ancestry of sec
15 of the Act. The original predecessor of sec 15(1)
is to be found in sec 13(2)
of the Motor Carrier Transportation Act, 39 of 1930. Upon an application for a
motor carrier certificate
under Act 39 of 1930 the Board or local board was
enjoined by sec 13(2) to take into consideration six different matters set forth
in paragraphs (a) to (f) of that subsection. The first such matter (see sec
13(2) (a) of Act 39 of 1930) was :
"...the question whether the applicant is likely to carry on satisfactorily
the transportation to which the application relates;"
The forerunner to sec 15(2) of the Act is sec 13(3) of Act 39 of 1930, which
read:
"Whenever any transportation facilities in existence within any area or over
any route, are, in the opinion of the Board or a local
board concerned,
satisfactory and sufficient to meet at a reasonable charge the transportation
requirements of the public within
that area or along that route, the Board or
such local board shall not grant any motor carrier
certificate
15.
certificate in respect of any motor carrier transportation within the same
area or over substantially the same route in competition
with the said
transportation facilities."
Sec 13(2) of Act 39 of 1930 was amended in 1949 by sec 2(a) of the Motor
Carrier Transportation Amendment Act, 50 of 1949, which substituted
for
paragraphs (a) to (f) thereof ten paragraphs lettered (a) to (j). In terms of
sec 13(2), so amended, in weighing an application
some of the matters to be
taken into consideration included -
"...the ability of the applicant to provide in a manner satisfactory to the
public the transportation for which a certificate is sought,"
(see sec
13(2)(f)).
"...the extent to which the transportation to be provided is necessary or
desirable in the public interest;" (see sec 13(2)(a)).
"...the need for providing the public within the area or along the route in
or over which the applicant proposes to operate, with
an adequate, suitable an
efficient transportation service;" (see sec 13(2)(b)).
By sec 2(b) of Act 50 of 1949 there was added to sec 13(3) of
Act
16. Act 39
of 1930 the following proviso:-
"Provided that, except in respect of an area or a route within or over which
transportation facilities are provided as aforesaid by
the Administration or a
local authority or any person under an agreement with a local authority, which
has been confirmed by law,
a motor carrier certificate may be granted in
competition as aforesaid if in the opinion of the body by which that certificate
is
to be granted -
(a)
the provision to be made
under the certificate will bring about material improvement in efficiency,
economy or convenience in the
transportation services in the area or over the
route in question; or
(b)
the grant of such a
certificate will, having regard to the circumstances, be
expedient
in the public interest;"
Sec 13(3) of 'Act 39 of 1930 was further amended by sec 11(f)
of the Motor
Carrier Transportation Act, 44 of 1955. For the
proviso quoted above it
substituted (I quote only the portion
relevant for present purposes) the
following words:-
" unless, in the opinion of the Board,
or the local board concerned, as the case may
be, the grant of such a
certificate will,
having regard to the circumstances, be expedient
in the
public interest "
While
17.
While it remained on the statute book Act 39 of 1930 was the subject of
frequent amendment. It was repealed and replaced, with effect
from 1 January
1978, by a fresh statute, the Road Transportation Act, 74 of 1977. The
counterpart of sec 13(2) of Act 39 of 1930
is sec 15(1) of Act 74 of 1977. The
provisions of sec 15(1) of Act 74 of 1977 as amended by sec 10(a) of the Road
Transportation
Amendment Act, 91 of 1980, have already been quoted. The only
change to sec 15(1) of the Act effected by Act 91 of 1980 is the addition
to sec
15(1)(c) of the words which have been underlined in the above quotation. Prior
to its amendment by sec 10 of Act 91 of 1980
sec 15(2) of Act 74 of 1977 read as
follows:-
"15(2)(a) When an applicant applies for a public permit to undertake road
transportation within an area or over a route or between
two or more points
already served by existing transportation facilities, the
onus
shall be
upon the applicant of proving that -
(i) such
existing transportation facili= ties are not satisfactory and suf= ficient to
meet the transportation requirements of the
public in that area or along that
route or between those points; or
(ii) the
18.
(ii) the tariff at which payment for such existing transportation facilities
is to be made is unreasonable : Provided that railway
tariffs shall, for the
purposes of this section, be deemed to be reasonable; or
(iii) having regard to circumstances, it will be expedient in the public
interest to grant him the permit; or
(iv) he belongs to the same class as the majority of the persons to be served
by the transportation service for which the permit is
sought, and that it is in
the interest of such persons desirable to grant him the permit; and
(v) he has the ability to provide in a
manner satisfactory to the
public.the transportation for which the permit is sought.
(b) When an applicant applies for a permit to
undertake road transportation in circumstances not contemplated in paragraph
(a), the
onus
shall be upon the applicant of proving that:-
(i) there is a need for such transportation within the area or along the route
or between the points in or over or between which
he proposes to undertake such
transportation; and
(ii) he has the ability to provide in a
manner satisfactory to the public the transportation for which such permit is
sought."
The
19.
The effect of sec 15(2)(a) of Act 74 of 1977 fell to be interpreted by this
Court in
W C Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road
Transportation Board and Others
1982(4) SA 427 (A), to which I shall refer
as "the
Greyling
case". In review proceedings in the
Greyling
case
a full Court of the Transvaal Provincial Division had declined to disturb a
finding by the National Transport Commission that
unless an applicant discharged
the onus of proving that existing transportation facilities are not satisfactory
and sufficient (see
sec 15(2)(a)(i) of Act 74 of 1977) his application for a
public permit was doomed to fail, and it was unnecessary to consider what
he had
proved in relation to any other sub-paragraph in sec 15(2)(a). That conclusion
rested on an interpretation of sec 15(2)(a)
according to which sub-paragraphs
(i), (ii), (iii) and (iv) were to be read conjunctively. On appeal this Court
held that upon a
correct construction of sec 15(2)(a) of Act 74
of
20.
1977 each of its sub-paragraphs (i), (ii), (iii) and (iv) fell to be read
disjunctively; and that if the applicant had proved, say,
(i) and (v) he should
(in the absence of other reasons to the contrary) be granted the permit.
It has been mentioned that Act 91 of 1980 modified sec 15(1) of Act 74 of
1977 in a single respect only. While the amending Act of
1980 left untouched the
provisions of sec 15(2)(b) of Act 74 of 1977, the provisions of sec 15(2)(a)
were re-arranged, and the links
connecting them were altered, by sec 10 of Act
91 of 1980. While the total number (five) of the sub-paragraphs was retained,
the
sub-paragraphs were renumbered thus: "(i), (iA), (ii), (iii) and (iv)"; and
they were reshuffled in the following manner: (1) Sub-paragraph
(i) - "existing
transportation facilities are not satisfactory...." - remained. (2) What had
been sub-paragraph (v) - the applicant's
ability to provide the transportation
"in a manner satisfactory to the public" -became sub-paragraph (iA), and it was
linked to sub-paragraph
(i)
21.
(i) by the conjunctive particle "and". (3) Sub-paragraph (ii) - dealing with
unreasonable tariffs of existing trans= portation facilities
and a presumption
in favour of the reasonableness of railway tariffs - remained, but it was linked
to sub-paragraph (iA) by the conjunctive
particle- "and". (4) Sub-paragraph
(iii) - to grant the applicant the permit would in the circumstances "be
expedient in the public
interest" - remained, and was linked to sub-paragraph
(ii) by the disjunctive particle "or". Sub-paragraph (iv) -the applicant
belonging
to the same class as most of the passengers to be served by the
transportation etc - remained, and was linked to sub-paragraph (iii)
by the
disjunctive particle "or''.
Against the background sketched above I turn to an examination of the reasons
which prompted the Court below to resolve the problem
of construction in favour
of the first interpretation. Having looked at the provisions of sec 15(2)(a) the
learned Judge decided
that upon a purely
linguistic
22.
linguistic treatment of paragraph (a) the first and second
interpretations were equally tenable. In argument before us counsel for the
appellant, while vigorously contending that the proper
construction to be
assigned to the paragraph was the second interpretation, did not seriously
contend that paragraph (a) was not
reasonably susceptible of the first
interpretation. In my view paragraph (a) is clearly capable of construction in
accordance with
either interpretation.
Since a purely textual appraisal of the paragraph in question yields two
alternative constructions regard may properly be had, in
considering what is the
true construction to the consequences involved in preferring the one or other.
That construction should be
adopted which is more consonant with and is better
calculated to give effect to the intention of the enactment. This was also the
approach adopted by the Court below. Having weighed various anomalies flowing
from the one or other interpretation (and in some instances
from both
interpretations) the learned
Judge
23.
Judge found himself unable satisfactorily to resolve the
paragraph's linguistic ambiguity:-
"The material which I have examined either yields no clue at all to its true
construction or supplies clues pointing in exactly opposite
directions. Neither
interpretation, as I view it at the end of the day, has a decisive edge over the
other." (At 1037 I).
To escape from this impasse the Court
a quo
ruled in favour of the
construction least onerous to those wishing to do business as carriers: freedom
of trade, so reasoned the
learned Judge, should be preferred to the restriction
of trade -
"This means that I must come down on the side of the first interpretation. It is
on the whole less burdensome to those seeking permits
than the second. I thus
uphold it." (At 1038 A/B).
Now where
there are no transportation facilities in existence paragraph (b) of sec 15(2)
of the Act requires an applicant for a public
permit in that area to discharge
the onus of proving both (1) that there is a need for such transportation within
the area or over
the route concerned
and
24.
(2) that he, the applicant, has the ability to provide such
transportation in a manner satisfactory to the public. In a statute designed
to
control road transportation the above two requirements, read in their particular
context, would seem to be reasonable and unexceptionable.
However, when the
provisions of paragraph (b) are borne in mind, what does at once call for
comment is the extraordinary consequence
entailed by the first interpretation of
paragraph (a). According to the first interpretation an applicant for a
public permit in an area or over a route or between two or more points
already served by existing transportation facilities need prove
neither (1) that
such existing facilities are unsatisfactory and insufficient nor (2) that the
applicant himself has the ability
to provide the transportation service sought
by him in a manner satisfactory to the public. It is
enough if such an applicant proves either that the grant of
the permit to
him will be in the public interest (see sub-para
(iii)or that he belongs to the same class as most of the
potential
passengers, etc. (see sub-para (iv)). Remarking
upon the feature that
according to the first interpretation
no proof was required of the
applicant's own
ability
25. ability to provide a satisfactory service, the learned Judge
expressed himself thus:-
"One wonders why proof which is compulsory in the absence of any other
service should cease to be (compulsory) the moment such (service)
exists A bad service is better, after
all, than none. To augment an existing service with a poor one is surely
another matter." (At 1035 D/E).
DIDCOTT, J concluded that this latter consequence of the first interpretation
"told rather strongly against it". But while recognising
this anomaly the
learned Judge on the other hand took into account as a factor militating no less
powerfully against the second interpretation
that the latter reinstates as an
essential matter for proof by an applicant the fact that the existing
transportation facilities
are unsatisfactory and insufficient. Alluding to the
history of the legislation the learned Judge remarked:-
"The fact that an area or route already enjoyed an adequate service had not
operated for a good thirty-one years as an absolute impediment
to the
authorisation of a fresh service there.
The
26.
The current statute had no such effect before it was amended." (At 1036
B/C).
And again:
"the second interpretation upsets the equilibrium of three decades, a result
which may have been intended, for all I know, but a
startling one if it was."
(At 1036 G).
It is not apparent to me,
with respect, why an intention on the part of the legislature to achieve the
result under discussion should
excite surprise. In this connection it may
not
be out of place, perhaps, to ponder the fact that our legi=
Slation governing road transportation in this country evidences somewhat of a
patchwork quality. Down the years its development has
been rather spasmodic and
uneven. Act 39 of 1930 appears to have been amended no less than sixteen times.
Bearing these considerations
in mind I find nothing particularly startling in
the suggestion that the matter of unsatisfactory and insufficient transportation
facilities should, the lapse of 31 years notwithstanding, be reinstated
by
27.
by the legislature as an essential requirement in sec 15(2)(a). Such
an intention on the part of the legislature would be no more
remarkable or
capricious, so I consider, than the legislature's indisputable intention
(manifested in sec 15(2)(a) of Act 74 of 1977)
to elevate to the status of an
essential requirement, for the very first time in 47 years; the matter of an
applicant's ability to
provide the transportation service for which he seeks a
permit in a manner satisfactory to the public.
On the other hand the consequence entailed by the first interpretation,
namely, that where transportation facilities already exist
the applicant for a
public permit may content himself with proof of no more than either sub-para
(iii) or sub-para (iv) and is required
to demonstrate neither the inadequacy of
such existing facilities nor his own ability satisfactorily to provide a
service, seems
to me to represent a flagrant anomaly from which one's judgment
must recoil. It is in my view distinctly improbable that by the amending
statute
of 1980
the
28. the legislature could have contemplated such a result. This view
of the matter is fortified, I think, by looking to the purpose
and object of the
Act, and its general purview. Attention has been called to the fact that, save
in the single respect already indicated,
Act 91 of 1980 left intact the
provisions of sec 15(1) of Act 74 of 1977. In delivering the judgment of the
Court in
Grayling
's case (
supra
) KOTZé, JA summed up (at
444 G/H) the intention to be gathered from sec 15(1) in the following
words:-
"In short the items listed in sub-paras (a) - (m) envisage:
(i) that the public should, in a particular area or over particular routes or
between relevant points, have at the very least a satisfactory
service; and
(ii) that, if the existing services do not
fulfil the above requirements, a service which does fulfil them should, if
available, be given to the public."
Having regard to the above exposition it is clear, in my opinion, that the
second interpretation, requiring as it
does
29. does proof in every case of (1) the unsatisfactory quality of
the existing transportation services and (2) the applicant's own
ability to
provide a satisfactory service, is more consistent with the smooth working of
the system which the Act has been designed
to regulate than the first
interpretation. To adopt the first interpretation would in my view be to
construe the Act so as to defeat
rather than to effectuate its object.
Although the arrangement of the sub-paragraphs in sec 15(2)(a) of the Act is
unfortunate and clumsy it is not a matter of insuperable
difficulty, I consider,
to resolve the resultant ambiguity. Whereas the second interpretation assigns to
paragraph (a) a meaning
which seems rational and beneficial, the first
interpretation, in my judgment, is calculated to introduce uncertainty,
inefficiency
and, as between rival carriers, injustice. It follows, in my
opinion
30. opinion, that the Court below erred in not deciding that the
second interpretation is more consistent with the presumed intention
of the
legislature. This conclusion renders it unnecessary to consider the question
whether, assuming the correctness of the finding
by the learned Judge that the
ambiguity in question was incapable of being resolved by weighing up the
consequences involved in the
rival inter= pretations, the particular aid to
construction finally invoked by the Court below (a presumption in favour of the
freedom
of trade) was, having regard to the objects of Act 74 of 1977, as
amended, apt for the resolution of the statutory ambiguity confronting
it.
The appeal succeeds. In respect of the costs of the appeal no order is
made. The judgment of the Court below is set aside and the
following judgment is
substituted therefor:
"The
31.
"The preliminary point affecting the construction of sec 15(2)(a) of Act 74 of
1977, as amended, is decided against the applicant
and in favour of the second
respondent. The review proceedings are adjourned with a view to such further
argument in respect of the
review as the parties may wish to
adduce."
By agreement one-half of the
costs of the hearing before DIDCOTT, J will be paid by the applicant.
G G HOEXTER, JA
CORBETT, JA )
JOUBERT, JA )
BOSHOFF, JA ) Concur
NESTADT, AJA )