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1989
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[1989] ZASCA 164
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Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd. and Others (323/89) [1989] ZASCA 164 (30 November 1989)
323/J39
PUBLIC CARRIERS ASSOCIATION & OTHERS
versus
TOLL ROAD CONCESSIONARIES (PROPRIETARY) LIMITED & OTHERS
NICHOLAS
A J A
323/89 WHN
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
PUBLIC CARRIERS ASSOCIATION
First Appellant
HULTRANS
(PROPRIETARY) LIMITED
Second Appellant
CARGO CARRIERS
LIMITED
Third Appellant
TANKER SERVICES
(PROPRIETARY)
LIMITED
Fourth Appellant
MAINLINE CARRIERS (PROPRIETARY)
LIMITED
Fifth
Appellant
and
TOLL ROAD CONCESSIONARIES
(PROPRIETARY) LIMITED
First Respondent
THE GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA
Second
Respondent
THE NATIONAL TRANSPORT COMMISSION
Third
Respondent
MINISTER OF TRANSPORT
Fourth Respondent
CORAM
:
JOUBERT, SMALBERGER, STEYN,
F H GROSSKOPF, JJA, et NICHOLAS, AJA
HEARD
: 2 NOVEMBER 1989
DELIVERED
: 30 November 1989
JUDGMENT NICHOLAS
A J A
/2
2
I have had the privilege of reading the judgment
prepared by SMALBERGER J A. Generally I am in agreement with his reasons for
judgment,
but I disagree in regard to the third question and would in
consequence make an order on the appeal which differs from that proposed
by
him.
In terms of s 9(1) of the
National Roads Act
, 54 of 1971 ("the
Act"),
"9(1) The (National Transport Commission)
may
(a) subject to subsection (3), declare
any bridge or tunnel on, or any portion of, a national road, as a toll road;
(b) in respect of the use of any vehicle
on a toll road, levy a toll the
amount
of which has been determined and
made known in terms of subsection (4) and which shall be payable by the person
so using the vehicle;
3
(c)
collect moneys payable as
toll on a toll road, and for that purpose erect a toll gate or toll gates and
facilities in connection therewith
on the toll road;
(d)
grant exemption from the payment of toll on a particular toll
road-
(i) in respect of a vehicle of a category
determined by the commission, or in respect of any such vehicle used on the toll
road, at
a time so determined; or
(ii) to a person of a category
determined by the commission, irrespective of the vehicle used by such person
on the toll road, or to any such person using a vehicle
on the toll road at a
time so determined,
4
and withdraw any such exemption;
(e)
restrict the levying of
toll on a particular toll road to the hours or other times détermined by
the commission;
(f)
suspend the levying of
toll on a
particular toll road for a specified or an
unspecified period and in respect of all vehicles or in respect of vehicles of a
category
determined by the commission, and resume the levying after a
suspension."
S 9(4) provides:
"(4) The amount of a toll levied under subsection (1), and any alteration
thereof -
(a)
shail be determined by the Minister on the recommendation of the
commission;
(b)
may differ in respect of
-
5
(i) different toll roads;
(ii) different vehicles or different categories of vehicles used on a toll
road; (iii) different times at which
any vehicle or any vehicle of a particular category is used on a toll
road;
(c)
shall be made known by
notice in the Gazette;
(d)
shall be payable
from a date determined by the Minister on the recommendation of the commission,
which shall be mentioned in the notice
whereby it is made known in terms of
paragraph (c)
and which shall not be a date earlier
than 60 days after the date on which such notice appears in the Gazette."
Government Notice No 1875 dated 16 September 1988 read as
6
follows:
"NATIONAL ROADS ACT, 1971 (ACT 54 OF 1971),
AS AMENDED EXTENSION OF TUGELA TOLL ROAD.- PUBLICATION OF THE AMOUNTS OF TOLL
FOR THE VARIOUS CATEGORIES OF MOTOR VEHICLES, THE TIMES
AT WHICH THE TOLL ROAD
MAY BE USED AND THE DATE ON AND TIME AT WHICH THE TARIFFS SHALL BECOME
PAYABLE.
The National Transport Commission hereby, in terms of section 9(4)(c) of the
National . Roads Act, 1971 (Act 54 of 1971), as amended,
makes known that the
amounts of toll which it may levy under section 9(1)(b) of the said Act have
been determined by the Minister
of Transport Affairs under section 9(4)(a)
thereof and that, the said amounts shall be levied under section 9(4)(b) (ii)
and (iii)
and 9(4)(d) thereof, as set out in the Schedule hereto. R. G. MEYER,
Chairman: National Transport Commission."
7
Paragraph 3 of the Schedule to the Notice read:
"3. AMOUNTS OF TOLL 3.1 The amount of toll payable over the full distance of the
toll road between the Frere Interchange and the
Cedara Interchange near Hilton
in respect of various motor vehicle classes
shall not exceed the
following
:
Class 1: R10,00
Class 2: R12,00
Class 3: R18,00
Class 4: R22,00
Class 5: R26,00
Class 6: R30,00
"
(My underlining).
The short question is whether the Minister
made an effective determination
of the amounts of the toll.
It was contended on behalf of the appellants
that the Minister did not make an effective determination.
8
In respect of each class of vehicle the Minister only assessed
a maximum figure payable, thereby merely setting the range or the upper
limit,
whereas s 9(4) required him to set specific tolls fixing the actual amounts
payable.
The starting-point in an examination of the question is the meaning
of the word
determined
as used in s 9(4) and s 9(1)(b). For the reasons
given by my learned colleague in his judgment, I have no doubt that it means
decide
or
fix
, and does not mean
set bounds to
, as
decided
by COMBRINK J in the judgment
a quo
.
In considering the soundness of the
appellants contention regard must be had to the purpose of s 9(4).
A toll
is a tax paid for the use of a public road. It is levied on the user of the toll
road and collected by the commission. Under
s 2(1)(bA) of the
9
Act, all money paid by way of toll in terms of s 9 must
be
paid into the National Road Fund. The commission has not
been left free to
exact whatever toll it pleases. The
legislature has made the toll a matter of ministeriai
responsibility, no
doubt in order that the Minister should
hold the balance between the needs of
the commission and the
interests of the public. Under the Act the power to determine
a toll has
been conferred on the Minister, who will have
regard, presumably, to the
costs, expenses and commitments
of the commission, and the benefits and
savings to be derived
by the user of the toll road. The primary object is
to
safeguard the public against arbitrary and excessive imposts,
by ensuring that the road-user is charged no
more
than the
amount
which the Minister considers to be fair. It is not
to prevent the road-user
from being charged
less
than that
amount.
10
In terms of s 9(1)(c) of the Act, the
commission may
"collect moneys payable as toll on a toll road" (that is, toll in the amount
determined under s 9(4)). This is a permissive
power: the commission is entitled
to collect toll in that amount but it is not under a statutory duty to do so.
That is clear from
s 9(1)(d), in terms of which the commission is empowered "to
grant exemption from the payment of toll on a particular toll road",
and from s
9(1)(f) in terms of which it is empowered to "suspend the
levying of toll on
a particular road".
If the words which I underlined in quoting
from the Schedule to the Government Notice had read "shall
be the following" there could have been no doubt that the
Minister had
made an effective determination of the amount
of toll. I do not think that
the use of the words "shall
not exceed the following" alters that position.
It did no
11
more than make explicit what was in any event implicit without them,
namely that a lesser amount could be collected by the commission
than was stated
in the notice.
I do not think, with respect to my learned colleague, that
this view of the matter is affected by the provisions of s 9(4)(a) or s
9(4)(d).
Under s 9(4)(a) any alteration of a toll shall be determined by the
Minister. This connotes an alteration of a toll previously determined,
and does
not
bear on what was required of the previous determination.
In terms of s 9(4)(d) at least 60 days
must elapse between the date of the notice and the date when a toll becomes
payable. I do not agree that the purpose of this is to
allow for representations
to be made to the Minister. There is nothing in the provision to suggest that,
having made a determination,
the Minister would be
12
open to representations before it comes into effect. Nor do I
agree that the requirement of the 60 day period is to enable persons
to arrange
their affairs in advance with due regard to the amount of toll they will be
required to pay. I cannot conceive that any
such arrangements could be upset by
a reduction in the amount payable below that set out in the notice.
The point made by the appellants is at best highly technical: a charge of
less than thé amount fixed by the Minister can only
redound to the
benefit of toll-road users, and in particular hauliers such as the appellants;
and a holding that the Minister's determination
is ineffective can only result
in general confusion and serious financial loss, without any advantage (other
than merely a temporary
one) to anybody. If the determination were to be set
aside,
13
the Minister could immediately make a fresh determination
stating that the amount of toll payable "shall be the following" without
alteration of the amounts. This could be brought into effect from a date fixed
in terms of s 9(4)(d) of the Act. Matters would then
go on as they are at
present.
The fact that the point is technical is not, of course, in itself a
reason why it should not be sound. In my opinion, however, it
is unsound, and
its unsoundness is illustrated by the practical results if effect were to be
given to it.
14
I would make the following order: The appeal is dismissed with costs,
including in respect of each of the respondents the costs
of two
counsel.
H C NICHOLAS AJA.
JOUBERT JA ) Concur F H GROSSKOPF JA)