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1989
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[1989] ZASCA 137
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S v Heavy Transport and Plant Hire (Pty) Ltd. and Others (373/88) [1989] ZASCA 137 (3 October 1989)
CG CASE NUMBER: 373/88
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between:
HEAVY TRANSPORT AND PLANT HIRE (PTY) LTD
Appellant no 1
TWO WAY
TRANSPORT (PTY) LTD
Appellant no 2
ERIC ANDRe MULLER
Appellant no
3
and
THE STATE
Respondent
CORAM
: CORBETT, CJ., HEFER, NESTADT, STEYN, et RUMLEBEN,
JJA.
HEARD
: 7 SEPTEMBER 1989
DELIVERED
: 3 OCTOBER 1989
JUDGMENT STEYN, JA.
2
Appellants and a company, SA Trucking (Pty) Ltd, were charged in the regional
court at Bloemfontein with two contraventions of sec
31 (1) (a) or alternatively
of sec 31 (1) (b), of the Road Transportation Act, no 74 of 1977. SA Trucking
(Pty) Ltd was accused no
1 and appellants accused no's 2, 3 and 4 respectively.
Before they were called upon to plead all the charges against the first accused
and the main charge against appellants were withdrawn. The original numbering of
the accused was, however, retained. First and second
appellants (accused no's 2
and 3 respectively) are Heavy Transport and Plant Hire (Pty) Ltd and Two Way
Transport (Pty) Ltd. Both
are companies duly incorporated in accordance with the
relevant South African company laws. Both were represented at the trial by
their
servant, Eric Andrè Muller, who was also charged separately (as accused
no 4) in his capacity as their director and/or
servant.
3
Appellants pleaded not guilty to the two remaining (alternative) counts. (The
charge sheet was cast in the form of a general section
in which reference was
made to an annexure, A, in which certain details pertaining to each count were
set out. This annexure will
be dealt with later.) These two charges were to the
effect that on the 12th February 1985 and 26th June 1985 respectively a load
of
washing powder and a load of steel were conveyed for reward by appellants on a
public road in the district of Bloemfontein, the
load of washing powder in a
trailer no ND 344020 drawn by a mechanical horse no HCW 290 T, driven by Rabie
Dael, and the load of
steel in a trailer no ND 125451, drawn by a mechanical
horse no CHM 859 T, driven by Sazingani Mafuduka. It was alleged that the
said
drivers were servants of first and second appellants and that in so driving they
acted in the course and within the scope of
their employment and on the
instructions of a director or servant of first and
4
second appellants. It was further alleged that the said conveyance
constituted road transportation otherwise than in accordance with
the provisions
of public permits no's OP 252235 and OP 220861 respectively.
At the trial
appellants were represented by an attorney, Mr JPP van der Berg. Despite their
pleas of not guilty they were convicted
on both counts. First appellant was
sentenced to a fine of R200,00 on each count and second and third appellants
were reprimanded.
Appellants appealed unsuccessfully to the Orange Free State
Provincial Division against their convictions. That Court however gave
them
leave for the present, further, appeal.
The charge sheet was drawn, and the
trial in the regional court conducted in Afrikaans. The judgment of that court
was likewise delivered
in Afrikaans. But the appeal to the Provincial Division
was argued in English on behalf of the appellants and the judgment of
5
that Court was also delivered in English. The present
appeal was also
argued in English on appellants' behalf
and the aforementioned permits are in
English. That is
why, apart from quotations in Afrikaans from the
trial
record, this judgment is in English.
At the commencement of the trial Mr van der
Berg set
out the bases of appellants' defence in the
following verbal statement in
terms of
sec 115
of the
Criminal Procedure Act, no 51 of 1977
:
"Die grondslag van die beskuldigdes se verweer op beide aanklagte is as volg.
Wat betref beskuldigdes 2 en 4, voer die beskuldigdes
aan dat die padvervoer wat
onderneem is gemagtig is in terme van die twee openbare permitte wat mettertyd
aan u opgehandig sal word.
Alternatiewelik, en indien die Hof sou bevind dat
daardie permitte nie die padvervoer, die onderhawige padvervoer, sou gemagtig
het
nie, dan is dit die beskuldigdes se verweer dat hulle nie die nodige opset
gehad het om die misdryf hulle ten laste gelê te
kon gepleeg het nie. Ten
opsigte van beskuldigde 3 is die verweer van beskuldigde 3 dat hy, of dat die
maatskappy dan liewers, nie
padvervoer onderneem het nie, padvervoer soos per
definisie in die Wet op Padvervoer,
onderneem
6
het nie, en alternatiewelik, dat die beskuldigde nie die misdryf hom ten laste
gelê, kon gepleeg het of kan pleeg nie. Dit
is 'n juridiese onmoontlikheid
vir daardie beskuldigde om die misdryf hom ten laste gelê, te kon gepleeg
het. Verder alternatiewelik,
dat indien daar op enige grondslag gevind kan word
dat hierdie beskuldigde padvervoer per definisie sou onderneem het, dan is
daardie
padvervoer gemagtig in terme van die permit uitgereik aan beskuldigde 2
en verder alternatiewelik, dat die beskuldigde nie die nodige
opset gehad het om
die misdryf of misdrywe dan hom ten laste gelê te gepleeg het
nie."
Thereafter the following list of written
admissions made
by appellants in terms of sec 220 of the Act was handed
in
as Exhibit A:
"1.
ALGEMEEN
1.1 Dat beskuldigdes no. 2 en 3
behoorlik geinkorporeerde maatskappye is ingevolge die Maatskappyewet.
1.2
1.3 Dat beskuldigde no 4 h
direkteur en dienaar was van beskuldigdes no 2 en 3 vanaf onderskeidlik Junie
1984 en September 1984 tot
en met 22 Mei 1985.
1.4 Dat beskuldigde no. 4 sedert 22 Mei 1985 tot huidiglik 'n dienaar is van
beskuldigdes no 2 en 3.
7
2.
AD AANKLAG 1:
2.1
Two Way Transport (Edms)
Bpk. was ten tye van die beweerde misdryf en is tans nog steeds, die
geregistreerde eienaar van voorhakperd
met registrasie no HCW 290
T.
2.2
Heavy Transport & Plant Hire (Edms)
Bpk. was ten tye van die beweerde misdryf en is tans nog steeds, die
geregistreerde eienaar
van h leunwa met registrasie no ND 344020, welke leunwa
ten tye van die beweerde misdryf met voorhakperd HCW 290 T getrek
was.
2.3
Heavy Transport & Plant Hire
(Edms) Bpk. is die houer van 'n openbare padvervoerpermit no OP 252235 uitgereik
deur die Padvervoerraad
ingevolge die Wet op Padvervoer no 74 van 1977, ten
opsigte van voertuig ND 344020. Laasgemelde permit is uitgereik op en geldig
vanaf 2 Oktober 1984 vir 'n onbepaalde periode (Bewysstuk "B"
aangeheg).
2.4
Die aanhangsels aangeheg by die
permit (Bewysstuk "B") bevat die magtigings in terme van die gemelde
permit.
2.5
Beskuldigdes no 2 en 4, maar nie
beskuldigde no 3 nie, erken dat op die datum in kolom 2 van die aanhangsel tot
die klagstaat (Aanhangsel
"A") het die persoon vermeld in kolom 1 van die
aanhangsel tot die klagstaat (Aanhangsel
"A")
8
die goedere genoem in kolom 4 van die aanhangsel tot die klagstaat (Bylae
"A") vervoer met leunwa ND 34420 welke leunwa getrek is
deur voorhakperd met
registrasie no HCW 290 T, welke kombinasie voertuie bestuur is deur die persoon
genoem in kolom 1 van die vermelde
aanhangsel onder magtiging van die permit
vermeld in kolom 6 van die aanhangsel op die nasionale pad, wat 'n openbare pad
is, tussen
Winburg en Bloemfontein in die distrik van Bloemfontein en binne die
regsgebied van die streekafdeling van die Oranje-Vrystaat.
2.6
Die persoon genoem in kolom
1 van die aanhangsel tot die klagstaat (Bylae "A") was 'n dienaar van of
beskuldigde no 2 en/of no 3 en
het gehandel in opdrag van 'n direkteur en/of
dienaar van beskuldigde no 2 en/of beskuldigde no 3 en in die uitvoering van sy
pligte.
2.7
Die goedere wat vervoer is (kolom
4) van die aanhangsel tot die klagstaat (Bylae "A") was versend vanaf Colgate
Palmolive (Edms) Bpk.
Bloemfontein ter aanvulling van laasgemelde se
voorraad.
2.8
Die padvervoer wat so onderneem
was het geskied met die wete dat dit teen vergoeding
was.
3.
AD AANKLAG 2:
3.1 Two Way Transport (Edms) Bpk was ten
9
tye van die beweerde misdryf en is tans nog steeds, die geregistreerde eienaar
van voorhakperd met registrasie no CHM 859 T.
3.2 Heavy Transport and Plant Hire (Edms) Bpk. was ten tye van die beweerde
misdryf en is tans nog steeds, die geregistreerde eienaar
van 'n leunwa met
registrasie no ND 125451 welke leunwa ten tye van die beweerde misdryf met
voormelde voorhakperd CHM 859 T getrek
was.
3.3 Heavy Transport & Plant Hire (Edms) Bpk. is die houer van 'n openbare
padvervoerpermit no OP 220861 uitgereik deur die Padvervoerraad
ingevolge die
Wet op Padvervoer, no 74 van 1977. Laasgemelde permit is uitgereik op en geldig
vanaf 22 Augustus 1983 vir 'n onbepaalde
periode. (Bewysstuk "C" aangeheg).
3.4 Die aanhangsels aangeheg by die permit, Bewysstuk "C", bevat die magtigings
in terme van die gemelde permit.
3.5 Op die datum in kolom 2 van die aanhangsel tot die klagstaat (Bylae "A") het
die persoon vermeld in kolom 1 van die voormelde
aanhangsel, die goedere genoem
in kolom 4 van die voormelde aanhangsel vervoer met leunwa ND 125-451 welke
leunwa getrek is deur
voorhakperd met registrasie no CHM 859 T, welke kombinasie
voertuie bestuur is deur die persoon
10
genoem in kolom 1 van die voormelde aanhangsel onder magtiging van die permit
in kolom 6 van die voormelde aanhangsel, op die nasionale
pad, wat 'n openbare
pad is, tussen Winburg en Bloemfontein, in die distrik van Bloemfontein en binne
die streekafdeling van die
Oranje-Vrystaat.
3.6
Die persoon genoem in kolom
1 van die voormelde aanhangsel tot die klagstaat, (Bylae "A") was 'n dienaar van
beskuldigde no 2 en/of
beskuldigde no 3 en het gehandel in opdrag van 'n
direkteur en/of dienaar van beskuldigde no 2 en/of beskuldigde no 3 en in die
uitvoering
van sy pligte.
3.7
Die goedere wat
vervoer is (kolom 4 van die aanhangsel tot die klagstaat, Bylae "A") was versend
vanaf Robor Isando na National Trading
Company, Bloemfontein, ter aanvulling van
laasgenoemde se voorraad.
3.8
Die padvervoer
wat so onderneem was, het geskied met die volle medewete van beskuldigdes no 2
en 4 en met die wete dat dit teen vergoeding
was."
(NB: Par 1 .2 above was left blank in the
original
possibly due to a mistake in the numbering. It was
common cause
that the vehicle described in par 2.5 supra
SEE ORIGINAL JUDGEMENT PAGE
11
as "leunwa ND 34420" was actually trailer no ND 344020.) The aforementioned
Annexure A to the charge sheet is in this form:
The authorizations ("magtigtings") specified in
the annexures to each of the aforementioned permits,
Exhibits B and C, are
identical. They are the following:
"1 . Spare parts only when required for immediate
bona fide
repairs to
broken down machinery or mechanical plant and not for installation or erection
of any new machinery or mechanical plant
being
12
erected/installed or to replenish stock. This authority does not cover the
conveyance of spare parts imported through any harbour
and directly or
indirectly transhipped after having been so imported: Within the Republic of
South Africa.
2.
Completely assembled
switchboards and transformers manufactured or assembled in the Republic of South
Africa: Within a radius of 560
(five hundred and sixty) kilometres from Durban
G.P.O.
3.
Agricultural machinery and tools,
direct to farms for farming purposes: Within a radius of 240 (two hundred and
forty) kilometres
from Durban General Post Office.
4.
Pile driving and drilling plant, for immediate use from one
construction site to another or to and from workshops: Within a radius
of 560
(five hundred and sixty) kilometres from Durban G.P.O.
5.
Completely assembled units of roadmaking and excavating machinery
direct to or from road construction or excavation sites for bona
fide road
construction or excavation purposes and not to be sold or offered for sale:
Within a radius of 560 (five hundred and sixty)
kilometres from Durban General
Post Office and also between such construction sites and the nearest Railway
Station thereto.
6.
Individual items of
earthmoving and roadmaking equipment excluding eguipment for re-sale: From
construction sites where equipment
has been used to
another
13
used or to and from garages for repair: Within the Republic of South Africa.
7. Indivisible abnormal loads measuring in excess of 13,7 m in length or 3,05 m
in width or 2,86 m in height provided that such loads
are accompanied by the
relevant abnormal load permit issued by the relevant Provincial Administration:
Within the Republic of South
Africa.
8. Only the completely constructed section of a wall, floor, ceiling, roof or
framework of a pre-fabricated building when purposely
made as integral part of a
wall, ceiling, floor, roof or framework of such a pre-fabricated building,
together with the tools of
trade and any material required for the erection or
assembling of the components, from the manufacturer's place of business at
Durban,
direct to construction sites situated within a radius of 240 (two
hundred and forty) kilometres from Durban General Post Office.
9. Mechanical handling equipment, contractor's plant and equipment: Within the
Republic of South
Africa."
Three witnesses
were called by the State. They
were Messrs EP van Eeden, inventory controller at Colgate
Palmolive (Pty)
Ltd, Boksburg; MA Sinclair, branch
manager of National Trading Company at
Bloemfontein and
14
AC Texeira, manager of SA Trucking (Pty) Ltd during the relevant period and a
director of first and second appellants from May 1985
and September 1984
respectively. Their evidence was not disputed and disclosed the following. The
consignment of washing powder (count
1) consisted of 1 kg and 500 g containers
and was sent by Colgate Palmolive (Pty) Ltd, Boksburg, to that company's
Bloemfontein branch
(and not
from
the latter branch as stated erroneously
in par 2.7 of the list of admissions, exh A). The consignment of steel (count 2)
was indeed
intended as a replenishment of stock at National Trading Company's
Bloemfontein branch as stated in par 3.7 of exh A, but after receipt
thereof a
portion of that consignment was to be delivered by National Trading Company to a
customer, Petrol Pumps, for use by the
latter in the construction of
installations, i.a. at petrol depots. Fourth appellant was at all relevant times
in effective overall
charge of first and second
15
appellants' operations and gave the necessary permission for all road
transportation undertaken by them. No evidence was presented
by the defence
which was limited to argument dealing with the admitted and undisputed facts on
the bases aforementioned.
Those bases were not persisted in during the
process of appeal and further appeal. The contention relating to the absence of
mens
rea soon fell by the wayside. It was not persisted in either in the Court a
quo or in the present appeal. It was correctly abandoned.
It had no
merit.
The main defence concerning all three appellants was, however,
maintained throughout (albeit on shifting grounds). Its essence is
that the
carriage of the goods in question was authorised by the phrase "contractor's
plant and equipment" in para 9 of each of the
aforementioned permits. That
defence therefore turns mainly upon an interpretation of the said phrase.
The
16
subsidiary defence, concerning only the second appellant (the erstwhile
accused no 3), set out by Mr van der Berg as aforementioned,
was also maintained
throughout. I will deal with it at a later stage. To better appreciate the
presentation of appellants' main defence
in its ultimate form in the present
appeal I will shortly trace the changes in its course and content during the
aforementioned process
of appeal and further appeal.
Mr Findlay represented
appellants in the appeal before the Court a quo, as well as in the present
appeal. His contentions in the Court
a quo on the main defence were the
following. The words "contractor" and "eguipment" in the aforesaid phrase each
has various dictionary
meanings and are, therefore, ambiguous. Each should
consequently be accorded its wide meaning, and the word "equipment" should in
addition be read disjunctively from the word "plant", and as being linked by
"and" only to "contractor's". The latter should be accorded
its
17
wide meaning of one who enters into a contract or agreement, including the
case of a trader who sells items of his stock to customers.
"Equipment" should
also be widely interpreted so as to include a trader's stock with which he
"equips" himself for subsequent sales
to his customers. It was common cause that
the washing powder and steel were transported to dealers in Bloemfontein in
order to supplement
their stock-in-trade for sale to customers. In both
instances the said goods therefore constituted "equipment" within the meaning
of
the said phrase, and their carriage was consequently authorised by the permits,
exhibits B and C. Alternatively, but only in respect
of count 2, Mr Findlay
submitted that the classification of goods carried under the authorisation of a
public carrier permit should
be determined by the end-use thereof, and not
solely by that to which it is put by the consignee. It being common cause that
the
portion of the load of steel destined for delivery to
18
Petrol Pumps was intended for use by the latter in erecting structures under
contract, that portion was, therefore, "contractor's
equipment" within the
meaning of the said phrase.
In this Court Mr Findlay did not persist in his
former contention as to the meaning of "contractor" and conceded that in the
context
of the said phrase it meant one who undertakes or contracts to do
certain work. That concession was rightly made. (See eg. The Oxford
English
Dictionary and The Concise Oxford Dictionary.) Mr Findlay was consequently also
constrained to concede that the respective
consignees in the two aforementioned
instances were not "contractors" and that the washing powder, and the steel not
destined for
Petrol Pumps, were not "contractor's equipment" within the meaning
of the said phrase. To avoid the otherwise fatal effect of these
concessions on
the tenability of appellants' main contention, Mr Findlay however submitted that
in
19
construing paragraph 9 no regard should be had to the other paragraphs of the
permits because each of them amounted to a separate
authority, and that the said
phrase should, in its turn, be construed on its own, without reference to the
rest of paragraph 9. Developing
this argument, he submitted that on a proper
construction of the said phrase, the word "equipment" stood alone, not linked in
any
manner to the words "contractor's" and "plant", as if it were contained in
an entirely separate paragraph, which, in the instant
case, would then have to
be par 10 in each of the said permits. Thus isolated, the word "equipment",
which was ambiguous for the
reason aforementioned, should be widely interpreted
as including everything not mentioned elsewhere in those permits. So construed,
"equipment" included the loads of washing powder and steel, and their carriage
was consequently authorised by the respective permits.
Mr Findlay also persisted
in the aforementioned alternative argument
20
relating to the steel destined for delivery to Petrol Pumps.
In contending
as set out above Mr Findlay relied throughout upon certain principles of law and
decisions of our courts. The main principles
relied upon were these. In the
interpretation of a public road carrier permit the words used therein must be
given their ordinary
meaning (
MULLER t/a SA TRUCKING v TRENCOR SERVICES (PTY)
LTD
1985 (3) SA 213
(A) at 220 J - 221 A). Should such words however be
ambiguous or reasonably capable of an interpretation favouring the permit
holder,
they should be accorded such favourable meaning in the light of the
principles that "freedom of trade is a right recognised and protected
by law"
and that in criminal proceedings the accused holder of a public road carrier
permit "is to be afforded the favourable or
benevolent interpretation where the
contents of the permit are vague or ambiguous". The two decisions mainly relied
upon by
21
Mr Findlay were
TRENCOR SERVICES (PTY) LTD v MULLER t/a
SA
TRUCKING
1983 (4) SA 893
(C) and the unreported
decision of the Eastern
Cape Division in
HEAVY TRANSPORT
AND PLANT HIRE (PTY) LTD AND ERIC
ANDRe MULLER v THE
STATE
(appeal no 1/85 ECD). In the
first-mentioned case
Rose-Innes J. came to the conclusion that cement
carried
by the holder of a permit authorising him to convey
"shaft-sinking equipment" would be covered by the permit
if intended to be used for the purpose of shaft-sinking
but not otherwise.
(There was no suggestion in that case
that the cement there in issue was
conveyed for such
purpose.) In
MULLER t/a SA TRUCKING v TRENCOR
SERVICES
(PTY) LTD,
supra, this Court dismissed the appeal, but
without
deciding whether the construction placed upon the
word "equipment" by
Rose-Innes J. was in fact correct.
Eloff AJA. said the following at 221
A-E:
"The permit, as any other document of a like nature, has to be construed in
accordance with the ordinary sense of the words used
(cf
22
GENTIRUCO AG v FIRESTONE SA (PTY) LTD
1972 (1) SA 589
(A) at 614
A-D).
I agree with the Court a quo that the evidence established that cement is
frequently used in shaft-sinking operations. I also share
its view that in that
setting the word 'materials' would have been more appropriate to describe a
commodity such as cement and I
shall assume that the word 'equipment' is capable
of a meaning sufficiently wide to include cement. And I have no doubt that it
correctly
rejected the contention that, because cement could be a component in
shaft-sinking equipment, the appellant's permit should be construed
so as to
authorise the conveyance of cement regardless of the purpose for which it is to
be used. In my opinion, the qualification
of 'equipmént' by the
adjectival phrase 'shaft-sinking' clearly indicates the purpose for which the
equipment is to be used.
Such a combination is common in English parlance, eg.
camping equipment, or building materials; in each case the adjective denotes
an
objective. 'Shaft-sinking equipment', in my view, denotes apparatus or material
which either is exclusively used in shaft-sinking
operations or, while capable
of use for other purposes, is intended to be used for the purpose of
shaft-sinking.
This view of the matter disposes of the contention advanced by appellant's
counsel that the phrase in question is ambiguous and that
it is accordingly
possible to adopt the meaning 'equipment capable of use for shaft-sinking'."
23
In the Eastern Cape case Mullins J. construed the phrase "contractor's plant
and equipment" in par 9 of a permit with provisions identical
to those of the
permits, exhs B and C. First appellant was also the holder of that permit and
conveyed a load of steel plates and
bars consigned directly to a construction
company for the use by it in the fabrication of steel sections for a factory it
was going
to erect. Mullins J. decided that little or no assistance could be
derived from the other eight paragraphs of the permit in construing
par 9
thereof, and came to the conclusion that the word "and" was used disjunctively
in the said phrase, linking the word "equipment"
only to the word "contractor's"
but not also to the word "plant". He adopted the construction put on the word
"equipment" in the
Cape
TRENCOR
case, supra, and held that the
aforementioned load of steel was "contractor's equipment" within the meaning of
the said
24
phrase and that the carriage thereof was, therefore,
authorised by
paragraph 9 of the permit.
Mr Findlay's aforementioned contentions
are
untenable. Public road carrier permits are
issued by the
competent statutory authority for the purpose of
achieving
the main objects of the Road Transportation
Act, No 74 of 1977 (the Act).
Those objects are aptly
summarised in
LAWSA
Vol 23 par 341, i.a. as
follows:
"The operational principle underlying the Road Transportation Act is that the
carriage of goods or persons for reward throughout
the Republic should be
regulated by the issuance of appropriate permits. ... The formulation of the
Road Transportation Act, which
succeeded the Motor Carrier Transportation Act of
1930, and the numerous amendments to both acts reflect various facets of
government
policy over the past few decades. Apart from co-ordinating and
restricting unnecessary traffic on the already overburdened road system,
a
number of provisions in the present act clearly reflect what is, perhaps, the
most important objective of the act, namely the protection
of the South African
transport services, without which, it is often contended, the outlying rural
areas of the country, which are
unlikely to attract much private initiative in
the field
25
of transport, would be unable to develop. There are also provisions which
reflect the decentralization policy of the government,
and a policy of petroleum
fuel conservation."
The competent statutory
authority which issued the permits exhs B and C was in the instant case a local
road transportation board
(board), as admitted by appellants in paras 2.3 and
3.3 of exh A. A board is empowered by sec 13 of the Act to entertain an
application
for a permit and is enjoined by sec 15(1) to consider a wide range
of matters when dealing with such an application. The Act also
prescribes what a
permit has to contain. That is set out in sec 21(3).
It is important to note
that a board is pertinently required to take the public interest into account
when considering an application
for a permit (sec 15(1)(a) and (e)) and that it
is endowed with a wide discretion in considering whether or not to grant the
application
and in deciding i.a. what class or classes of
26
goods may be conveyed under the permit (sec 15(1)(m) and 21(3)(c)). To my
mind it is clear that a board has the power to limit a permit
to a specific
class of goods which may be conveyed under its authority. Included in the
concept of "class" would, eg., be goods of
a particular nature or type and the
purpose for which such goods are to be used.
In construing a permit it is
necessary to ascertain not only the intention of the issuing authority (in the
instant case the board
which issued the permits, exhs B and C), but also the
nature and ambit of the authorisation. In this respect the process is akin
to
the interpretation of statutes. It is to my mind obvious that (as in the case of
a statute) the whole permit will have to be looked
at in the process of
construction and that it will have to be construed in accordance with the
ordinary sense of the words in the
context in which they are used in the permit,
bearing in mind the purpose and
27
provisions of the Act. That is, I think, implicit in the aforequoted passage
in the judgment of this Court in
MULLER's
case, supra.
I now deal with
Mr Findlay's aforementioned contention regarding the construction of the noun
"equipment" as used in the said phrase.
It is true that the word has a variety
of dictionary meanings. Some of them were mentioned at p 897 of the Cape
TRENCOR
judgment. In
WEST'S LEGAL THESAURUS/DICTIONARY
the noun is
accorded the following wide series of meanings: "Furnishings or what is needed
for the required purposes (defective equipment).
Gear, supplies, fittings,
accoutrements, paraphernalia, provisions, apparatus, material".
THE CONCISE
OXFORD DICTIONARY
, however, defines it more compactly as follows: "equipping
or being equipped; manner in which person or thing is equipped; outfit,
tools,
apparatus, necessary for expedition, job, warfare, etc". The context in
which
28
the word is used in the identical annexures to the permits, exhs B and C,
will however, determine its correct construction. When each
permit, or more
precisely, the annexure thereto, is considered as a whole, a clear scheme
becomes apparent in terms whereof the carriage
of the following is
authorized:
(a) Machinery and its related spare parts and tools
(paras 1,
3, 4, 5, 6 and par 9, at least in that part of
it referring to mechanical
handling equipment and
contractor's plant);
(b) (i) Completely assembled installations
(switchboards and
transformers), (par 2);
(ii) completely constructed components of buildings,
together with the tools of trade and material required for the erection thereof
at the "construction site" (i.e. the building site). (para 8),
and
(c) Indivisible, abnormally large loads of specified
dimensions (par
7) . It is clear that par 7 ref ers to
29
single items which are either already constructed (e.g. a large boiler) or
are abnormally large single components of a structure or
machine (e.g. a very
large single beam or shaft). This scheme clearly reflects the intention of the
board. To my mind paragraphs
1-8 therefore afford valuable assistance in the
construction of par 9, and I cannot agree with the aforementioned view of
Mullins,
J., in the Eastern Cape
HEAVY TRANSPORT
case, supra, that little
or no assistance can be derived from those paragraphs. It is true that a
separate authorisation is contained
in each of them, as Mr Findlay contended,
but they are nevertheless authorisations which are clearly linked by the
aforesaid scheme.
And that scheme is again reflected in the first part of par 9
which clearly refers to machinery. It is likewise reflected in the
first portion
of the aforementioned phrase which constitutes the second part of par 9. The
word "plant" therein contained clearly
also refers to machinery.
THE
CONCISE
30
OXFORD DICTIONARY
defines "plant" in its non-biological and
non-socio-criminal senses as follows: "fixtures, implements, machinery, etc,
used in industrial
processes; factory."
THE OXFORD ENGLISH DICTIONARY
(Vol VII) gives the following illustration (by way of a quotation from a trade
journal) of the meaning of "plant" used in the aforementioned
sense: "1882.
Engineer
24 Feb 133/2. The plant includes one steam crane, three steam
travelling cranes, a steam fire-engine, a steam pump, two steam hammers,
seven
steam engines, three boilers, and a few hundred naii-making machines." It is in
this sense of denoting heavy machinery, that
the word must be understood in the
expression "contractor's plant". It therefore denotes the heavier items of
machinery which a contractor
requires for the performance of his work. Such
items would e.g. include concrete mixers, cranes, diesel or petrol engines,
power
generators and compressors. The lighter items needed by
31
him, e.g. ladders, scaffolding, wheelbarrows, drills, spades, etc, would
however be excluded from par 9 on the construction contended
for by Mr Findlay.
This would be an illogical exclusion in view of the fact that the carriage of
light items such as spare parts
and tools is authorised in paras 1, 3 and 8. It
would be even more illogical to include in the same permit, in clear conflict
with
the aforementioned scheme, a further general authorisation permitting the
carriage of a vast, unspecified range of goods, which would
on Mr Findlay's
suggested construction, inevitably include goods entirely unrelated to what is
specified in the rest of the permit.
The fact that such further, general,
authorisation would also cover the carriage of a contractor's tools, etc, does
not detract from
the complete illogicality, and, in fact, the absurdity, of the
construction contended for by Mr Findlay.
The logical construction of the said phrase in
32
the general context of the permit as a whole and in the particular context of
par 9 thereof, would be that the word "and" is used
conjunctively to link
"equipment" with "plant", both being linked to the adjective "contractor's", as
found by Malherbe, J., in the
Court a quo. To my mind that is the correct
construction. When "equipment" is so linked to "plant" and "contractor's" its
meaning
becomes clear. It then denotes the contractor's tools and other
aforesaid lighter items he needs for the proper performance of his
tasks. Such a
meaning is also in accordance with the definition of "equipment" in
THE
CONCISE OXFORD DICTIONARY
. The phrase so construed is unambiguous and its
effect logical. In consonance with the aforementioned scheme it then also
denotes
the same class of goods as that referred to in the first portion of par
9 and in paras 1, 3, 4, 5 and 6 of the permit. In the field
of industry to which
the permit relates, the phrase so construed would in all
33
probability also be the natural way of referring to a contractor's machinery
and tools of trade. The carriage of the loads of washing
powder and steel was,
therefore, unauthorised and constituted contraventions of sec 31(1)(b) of the
Act. First and third appellants
clearly acted in concert in the commission of
both offences and were rightly convicted.
It follows that the aforementioned
Eastern Cape
HEAVY TRANSPORT
case was wrongly decided. The load of steel
plates and bars there in issue was not "equipment" within the meaning of the
said identical
phrase in that permit despite the fact of that load having been
consigned directly to the contractor who intended using it for construction
purposes. It was nothing more than construction or building material which was
to be used by the consignee in the fabrication of
components for the factory
building it had contracted to erect. The steel destined for Petrol Pumps fell
into the same category.
34
The position is somewhat different as far as the Cape
TRENCOR
case,
supra, is concerned. My difficulty there is that no reference is made in the
judgment to the other terms (if any) of the permit
in guestion. Without such
information I cannot come to a conclusion whether the interpretation by
Rose-Innes, J., of the phrase "shaft-sinking
equipment" is correct or not. But I
feel constrained to say that I nevertheless have strong reservations concerning
its correctness.
I now turn to the subsidiary defence which concerns second
appellant (accused no 3) only. The gist of it is that although the two
mechanical horses belonging to second appellant were used to draw the trailers
carrying the loads of soap powder and steel, they
did not fall within the
definition of "motor vehicle" in sec 1 of the Act. Second appellant was also not
the holder of any public
road carrier permits. Mr Findlay contended, therefore,
on the authority of S v
35
SMITH
1986 (3) SA 714
(A), that second appellant was
consequently in law incapable of contravening sec 31(1)(b) of the Act and had
been wrongly convicted.
There is no merit at all in this defence. It is trite
law that an accomplice can be convicted of a crime which the accomplice cannot
commit as principal offender. The classic example is that of a woman assisting a
male to rape another woman. On the admitted and
undisputed facts it is clear
that second appellant, through its officers and servants, knowingly assisted
first appellant in the
unlawful transportation of both the aforementioned loads.
It was consequently an accomplice to the commission of both offences and
was
fightly convicted on both counts.
The appeals of all three appellants are
dismissed.
M T STEYN, JA.
CORBETT, CJ.)
HEFER, JA.)
NESTADT, JA.)
KUMLEBEN, JA.)