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[1990] ZASCA 49
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Commissioner for Inland Revenue v First National Industrial Bank Ltd. (381/88) [1990] ZASCA 49; 1990 (3) SA 641 (AD); [1990] 2 All SA 327 (A) (18 May 1990)
CG
CASE
NUMBER: 381/88
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION
In the matter between:
THE COMMISSIONER FOR INLAND
REVENUE
Appellant
and
FIRST NATIONAL INDUSTRIAL BANK
LIMITED
Respondent
CORAM
:
CORBETT
CJ, BOTHA, KUMLEBEN JJA,
NICHOLAS et NIENABER AJJA
HEARD ON
: 15 MARCH 1990
DELIVERED ON
: 18 MAY 1990
JUDGMENT NIENABER AJA
2
What was essentially a secondary
point in the Court below - whether and from when mora interest is to
run - has become the principal
one in this Court. In the Court below
the principal issue between the Commissioner for Inland Revenue (the
appellant in this Court
but the respondent in the Court below) and
the First National Industrial Bank Ltd (the applicant in the Court
below and the respondent
in this one) was whether a certain autocard
scheme administered by the Bank between 1984 and 1986 constituted a
"credit card
scheme" (as it was then defined in section 1
of the Limitation and Disclosure of Finance Charges Act 73 of 1968,
now called,
in terms of section 9 of Act 42 of 1986, the Usury Act)
and as such attracted stamp duty in terms of section 3 read with
Schedule
1 of the Stamp Duties Act 77 of 1968. (That issue,
incidentally, is no longer a live one: the Usury Act has been amended
to cater
for it.)
The Bank throughout contended that
its scheme
3
did not attract starnp duty. But
when the Commissioner,
notwithstanding representations to
the contrary, insisted
that it did, the Bank resolved to
pay the duty (amounting
in all to R488 353,80) "under
protest". Each payment was
made under
cover of a letter (annexure
"I")
containing
this formula:
"As we have not yet finalized
this matter with the authorities, in order to avoid any penalty in
terms of the new section 19
of the Stamp Duties Act, 1968 (as
inserted by section 8 of the Revenue Laws Amendment Act, 1984), we
hereby make payment, under protest,
of stamp duty in respect of the
... debit entries to our Auto Card holders."
Having made such payments during
the period
from the 21st of August 1984 to
the 20th of May 1986 the
Bank, on the 11th of August 1986,
formally claimed
repayment of all the amounts thus
paid. When this was
refused it launched an application
for such repayment,
with interest a tempore morae, in
the Witwatersrand Local
Division, which was served on the
Commissioner on the
4
26th March 1987.
Two issues were debated before the
Court a quo:
(1) the primary one whether stamp
duty was properly
chargeable and accordingly whether the
Commissioner was
obliged to repay the capital sums paid to his
office;
and
(2) if so, the secondary one
whether the Commissioner
was bound, in addition, to pay interest
on the capital
sums that had to be repaid, from the respective
dates on
which each payment was made by the Bank to
the
Commissioner.
The Court a quo decided both
questions in
favour of the Bank and accordingly
granted judgment in
the following terms:
"Judgment is given against
the respondent in favour of the applicant for:
payment of an amount of R488
353,80;
interest on
the amounts from the dates and
at the
rates set out in annexure
X
to
the draft order handed in;
costs of suit including the costs
of two
5
counsel."
Annexure
X
is a schedule settihg out the date
and the amount of each payment
made by the Bank to the
Commissioner and the legal rate of
interest appropriate
to it.
The Commissioner accepted the
decision of the
Court a quo on the first but not
on the second issue.
Hence the present appeal, brought
with leave of the Court
a quo,
"against
paragraph 2 of the judgment and order in terms of which the
respondent was awarded interest on the amounts from the
dates and at
the rates set out in annexure
X
to
the draft order, given by the above Honourable Court on the 28th of
April 1988".
The issue before this Court is
therefore a
comparatively narrow one, namely,
whether, and if so from
which date, the Commissioner is
obliged to pay "interest
a tempore morae" on stamp
duties he collected when he
should not have done so and which
were paid to him "under
6
protest".
When the Bank initially applied
for a refund in
its letter of the 11th August
1986, it did so in terms of
section 32(1)(a) of the Stamp
Duties Act 1968. In its
application before the Court below
the Bank broadened the
base of its claim by stating:
"In the
premises,
I
submit
that the Respondent is legally obliged to exercise the discretion
conferred upon him in terms of Section
32(1)(a)
of the Stamp Duties Act, and to
make a ref und to Applicant of the amount of R488 353,80 representing
stamp duties overpaid.
I
submit
further and in any event that the said amount was paid by the
Applicant to the Respondent under protest, as appears from Annexure
'I',
and that the Respondent is obliged to
repay the
said amount to the Applicant with
interest a tempore morae."
The Court a quo held that section
32(1 ) (a) was not
applicable to the Bank's claim for
a refund and that the
legal relationship between the
Commissioner and the Bank
was what the Court described as an
"ordinary common law
legal relationship flowing from
unjust enrichment".
7
Counsel for the Commissioner, on
the other hand,
contended in this Court that
section 32(1)(a) not only
applies but that "it is the
only possible legal and
factual basis" for a refund;
and since the section does
not expressly provide for
interest, no interest is
recoverable. Counsel for the Bank,
in turn, submitted
that the Bank's true claim is
either the condictio
indebiti or one under contract,
and that the Bank's
initial reliance on section
32(1)(a) did not prejudice
its claim under either head.
Even though the claim for a refund
has been
conceded it thus becomes necessary
to examine section
32(1)(a) more closely. It reads:
"1. The Commissioner may
make, or authorise to be made, a refund in respect of: (a) the amount
of any overpayment of the duty
or any penalty properly chargeable in
respect of any instrument, if application for the refund is made
within two years after the
date of such overpaýment."
"The present claim", so
it was stated by the
8
Court below,
"does not, in my view, fall
under the provisions of section 32 of Act 77 of 1968. This section
authorises the Commissioner to
make or authorise to be made a refund
in respect of any
overpayment
of the duty properly chargeable
in respect of any instrument. In this case there was not an
overpayment of duties payable. There
was a payment of duties not
payable".
I
agree
with these remarks. What the section
contemplates is a payment made in
respect of duties
rightly chargeable but wrongly
calculated. To the extent
of any excess there would be an
"overpayment" and it
would be an overpayment of duties
"properly chargeable".
The taxpayer could then claim, and
the Commissioner would
be empowered to authorise, a
repayment in terms of the
section without recourse to the
technicalities of a
common law condictio. But this was
not such a case.
Here the Court a quo found that
the payments were made by
the Bank and accepted by the
Commissioner in respect of
"an instrument" which
did not, in reality, attract duty
r
9
at all. This
was not, therefore, a case where the Bank paid in excess of what it
should have paid; this was a case where it should
not have paid"
anything at all. Hence there was no overpayment of duties "properly
chargeable". Section 32(1)(a) accordingly
did not apply. That
being so
I
cannot
agree with the main submission of counsel for the Commissioner that
section 32(1)(a) was conclusive of the entire issue and
that,
since
the section was silent on interest, no interest was
payable
at all. (Contrast,
CIR v NCR CORPORATION
OF SA (PTY) LTD
1988 (2) SA 765
(A) at
775 E-H). Section
32(1)(a), moreover, is
not the sole and exclusive vehicle
for
claiming repayment. The section does not, either in terms or context,
purport to create a comprehensive remedy. What it does is
to empower
the Commissioner, in particular circumstances, to make or approve a
refund. But that does not mean that an aggrieved party
is precluded
from advancing a claim for repayment on a
10
different basis, or that the
section precludes a claim
for mora interest where the
overpayment is legally
recoverable at common law. The
fact that the Bank in its
initial letter of demand may have
misconceived its
remedy, and that its main ground
for redress in the
application was not the
appropriate one, is not in
itself, therefore, fatal to its
case.
Having correctly concluded that
section 32 was
not applicable the Court a quo
went on to say:
"Since the applicant's
payment was made not in error but under protest the condictio
indebiti does not seem to be applicable
to the present set of facts."
and again,
"The legal relationship
between the commissioner and the applicant is an ordinary common law
legal relationship flowing from
unjust enrichment. It is not a
relationship created by any statutory provisions."
The assertion that the condictio
indebiti is
inapplicable simply because the
payment in question was
11
not made in error is, with
respect, something of an
oversimplification. Whatever may
have been the position
in Roman-Dutch law (cf. DE VOS,
VERRYKINGSAANSPREEKLIKHEID IN
DIE SUID-AFRIKAANSE REG
,
3rd ed 172), our present law
appears to have assimilated
the basic notion of English law
with regard to "payments
made under duress of goods".
Thus it was stated by Innes
CJ in
UNION GOVERNMENT
(MINISTER OF FINANCE) v GOWAR
1915
AD 426
at 433-4:
"It would be in the highest
degree inequitable that the Treasury should be permitted to retain
what it had no right to claim;
and the question is whether the law
will allow it to take up such a position ... . It seems to me that
money wrongly exacted by the
possessor of goods from the true owner
as a condition precedent to their delivery, and paid by the latter
not as a gift, but in order
to obtain possession of his own property
and with a reservation of his rights would be recoverable by a
condictio ... . Where goods
have been wrongly detained and where the
owner has been driven to pay money in order to obtain possession, and
where he has done
so not voluntarily, as bý way of gift or
compromise, but with an expressed reservation of his legal rights,
payments so made
can be recovered back, as having been exacted under
duress of goods. The onus of showing that the payment had been made
involuntarily
12
and that there had been no
abandonment of rights would, of course, be upon the person seeking to
recover."
Wessels Actg AJA, in a concurring
judgment, stated at 453:
"I
think
we may well take the further step and hold that a payment is
involuntary and, therefore,
recoverable,
even though it was not made metus causa in the Roman law sense, but
was made under pressure at the
demand of
one in authority who had it in his power to withhold the property or
to suspend the rights of the person making the payment."
De Villiers AJA was the only
member of that Court to label the
action the condictio indebiti. In
this he has been followed by
several modern writers.
DE VOS
,
op cit. 172 puts it thus:
"Ons hedendaagse praktyk
verleen 'n condictio indebiti aan iemand wat onder dwang en protes
bewustelik h onverskuldigde betaling
gemaak het."
(See, too, JOUBERT,
LAW OF
SOUTH AFRICA
, vol 9, par 67; VAN HUYSSTEEN,
ONBEHOORLIKE
BE
ï
NVLOEDING EN MISBRUIK VAN OMSTANDIGHEDE IN DIE
SUID-AFRIKAANSE VERBINTENISREG
, 123 and following; VISSER,
DIE
ROL VAN DWALING BY DIE CONDICTIO INDEBITI
, 229 and following.) If
that classification is correct the condictio indebiti is not, of
course, confined to the
13.
recovery of an indebitum solutum
which was involuntary because it was paid by mistake; it is now also
available when the payment,
(or indeed any performance), although
deliberate, perhaps even advised, was nevertheless involuntary
because it was effected under
pressure and protest. (These are not,
of course, the only instances where the condictio indebiti may be
invoked - cf. DE
VOS
,
op cit
. 173 and following.)
For present purposes it is not
important whether this form of action is correctly described as an
extension, and hence as a sub-species,
of the condictio indebiti, or
as a category all on its own; or indeed what its precise range or
requirements are. Nor is there any
need to consider whether the
emphasis properly falls on the wrongfulness of the duress, on the
involuntary nature of the performance,
or on the protest as an index
to the one or the other or as an element in its own right. There is
no need to do so fo'r the present
case is not, on the facts, a true
case of "duress of goods" at all; the payments, though
expressed to be under protest,
were made voluntarily; and
14
there was no question (in the
language of
GOWAR'S
case, quoted
above, and assuming the doctrine
to be thus limited) of goods
being detained or of rights being
withheld - here, at best for
the Bank, there
was the prospect of penalties being imposed.
I
say so for the following reasons.
The dispute between the parties
first surfaced when
certain representations about the
matter were made on behalf of
the Bank and others to an official
of the Department of Finance
Inland Revenue. This was in May
1984, prior to the introduction
(on 1 July 1984) of a new Item 6
of Schedule 1 to the Stamp
Duties Act 1968, whereby every
debit entry posted to an account
in terms of a credit card scheme
would henceforth attract a duty
of five cents; the penalty for
non-payment, in terms of a new
section 19, would be 10% per
month. The Commissioner responded as
follows in June 1984:
"It is therefore suggested
that you and the other interested parties approach the Registrar of
Financial Institutions under whose
administration the Limitation and
Disclosure of Finance Charges Act falls, for a ruling in this
regard."
15
The Bank duly pursued this
suggestion only to receive the
following reply, on the 15th
August 1984, from the Registrar of
Financial Institutions:
"In the circumstances the
Office is of the opinion that the auto card scheme falls within the
definition of 'credit card scheme'
and that the stamp duty in
question is therefore payable in respect of the relevant debit
entries."
It was then that the Bank decided,
firstly, to pay the required stamp duty "under protest",
which it commenced doing on
the 21st August 1984 and, secondly, two
years later, to claim a refund from the Receiver of Revenue, which it
did on the 11th of
August 1986. It was that demand which precipitated
the present proceedings.
Nowhere in the correspondence or
the affidavits is there any suggestion that the Commissioner
threatened to exact, in terms of section
19, or recover, in terms of
section 30 of the Stamp Duties Act 1968, any penalties if payment was
not made in accordance with the
views expressed by the Commissioner
and the
16
Registrar of Financial
Institutions. The decision to effect
payment under protest in order to
avoid the risk of penalties
being exacted from the Bank was
one taken by the Bank purely on
its own initiative. The imposition
of penalties, as appears from
the wording of section 19 of the
Stamp Duties Act would not,
however, have followed as a matter
of course: the Commissioner,
in terms of the proviso to that
section,
"may, having regard to the
circumstances of the case, remit the whole or any part of that
penalty".
This is not, therefore, a case
where an unjustified demand for
payment, braced by inevitable
statutory penalties, constitutes
duress by implication. No case is
made out that the Bank
approached the Commissioner for a
suspension of the payment of
stamp duty or a remission of
penalties until such time as the
dispute between them had been
resolved, and that the Commissioner
had refused such a request. In
those circumstances it cannot be
said that improper pressure was
exerted on the Bank to effect the
payment
timeously and in terms of the statute.
I
accordingly
17
agree with counsel for the
Commissioner that the payments were voluntarily made. In the words of
Stratford J (as he then was) in
LILIENFIELD AND COMPANY v BOURKE
1921 TPD 365
at 371-2:
"The duress was the phantom
of their own minds." (See, too, the remarks of Muller AJA in
PORT ELIZABETH MUNICIPALITY v UITENHAGE MUNICIPALITY
1971 (1)
SA 724
(A) at 741 D-E.)
In short, the claim for a refund
cannot be accommodated under either the classical condictio indebiti,
based on error, or on its extended
form, based on duress. No other
basis (except contract) was suggested either in the papers or during
argument.
And because all the payments were
made with tfïe fixed intention of discharging existing (albeit
disputed) debts in order to
deflect the possible imposition of
penalties, it cannot be said, for the purpose of an action on
enrichment, that the payments, qua
payments, were without due cause.
I
do
not, accordingly, agree with counsel for the
18
Commissioner that the proper basis
for awarding a refund was section (1)(a) of the Stamp Duties Act
1968, nor with the Court a quo
that,
simpliciter
, it was undue
enrichment.
Finally, on
this part of the case,
I
do
not think that there is any substance in two subsidiary arguments
advanced on behalf of the Commissioner.
The first was that the condictio
indebiti did not lie against him since he was merely the officer
responsible for carrying out the
provisions of the Stamp Duties Act
1968, and no cause of action based on unjustified enrichment could
lie against such an officer
in respect of funds channelled into the
Consolidated Revenue Fund (section 30(3)). The Commissioner was the
authority to whom payment
had to be made and, once the other
requirements of the condictio indebiti had been satisfied, he was the
obvious party from whom
payment had to be recovered, whatever the
ultimate administrative destination of the payments might be. It is
not, in my opinion,
legitimate to differentiate for this purpose
between various functionaries and departments of State.
19
The second point was that the
fiscus is not liable to
pay mora interest. For this
proposition counsel relied on VOET
49.14.2. To the extent that VOET
suggests that the Treasury is
not liable for the payment of
interest he is either discussing an
exception of the Roman law or, if
not, the rule has become
obsolete in ours (cf. GROENEWEGEN
De Leq. Abr.
22.1.17.5). The
frequently quoted remarks of
Centlivres CJ in
LINTON v CORSER
1952 (3) SA 685
(A) at 695H are
not inapposite:
"The old
authorities regarded interest a tempore morae as 'poenaal ende
odieus', vide
UTRECHTSCHE CONSULTATIEN
,
3, 63, p.288. Such interest is not in these modern times regarded in
that light. To-day interest is the life-blood of finance, and
there
is no reason to distinguish between interest ex contracu and interest
ex mora.
MILNER'S
case is, as far as
I
have
been able to ascertain, the only case which
applied the
old authorities ..."
Counsel for the Bank submitted
that it was immaterial whether the claim for the recovery of the
payments was perceived to be one founded
on the condictio indebiti or
on contract.
The notion of recovery in terms of
a contract stems from the fact that each payment was expressly
declared to be made
20
"under protest". Such a
stipulation, so it was contended, means that it was in effect agreed
between the parties that each
payment was tendered by the Bank on
account of stamp duties payable, and accepted by the Commissioner on
the basis that it would
be recoverable if found not to be due, i.e.
that, subject to extraneous defences such as set-off or prescription,
it would in due
course be refunded.
The addition of the words "under
protest" when a payment is tendered can, so it seems, f ulf il
one or more of several functions:
(i) The phrase can serve as
confirmation that, in the broad sense, the payment was not a
voluntary one or, in the narrower sense,
that it was due to duress.
The failure so to stipulate could support an inference that the
payment was voluntary or that in truth
there was no duress. (ii) It
can serve to anticipate or negate an inference of acguiescence, lest
it be thought that, by paying without
protest, the
solvens
conceded the validity or the legality of the debt, or
21
his liability to pay it, or the
correctness of the amount claimed. The object is to reserve the right
to seek to reverse the payment.
The effect is not to create a new
cause of action but to preserve and protect an existing one - namely,
that the payment was an indebitum
solutum which is recoverable in law
e.g. by means of the condictio indebiti or in terms of section
32(1)(a) of the Stamp Duties Act,
1968.
(iii) It could serve as the basis
for an agreement between the parties on what should happen if the
contested issue is tested and
resolved in favour of the
solvens
.
Such an agreement would indeed create a new and independent cause of
action.
In the instant case (i) is not
applicable because the payment was a voluntary one, not due to
duress; and (ii) is not applicable because,
in the absence of
mistake, duress or any other recognized ground for invoking the
condictio indebiti, there was no independent cause
of action to
preserve or protect. Hence the real question is whether (iii)
applies.
Counsel for the Bank contended
that it did. There is
22
support for this approach.
In
PORT ELIZABETH MUNICIPALITY
v UITENHAGE
MUNICIPALITY
,supra, at 741E
Muller AJA stated as follows:
"But, as
I
am of the opinion that the moneys
paid
in the instant case are indeed recoverable
on
the alternative basis - namely, as moneys
paid
on condition that the same should be
recoverable
if found not to be due - it is unnecessary to decide whether the
payments in question can be regarded as having been made
under
duress. In
UNION GOVERNMENT v GOWAR
,
supra at p 446, De Villiers, AJA., after
referring
to Roman and Roman-Dutch authorties,
stated:
'But if he pays under protest he
is
entitled to recover, for the
protest
is inconsistent either with the
idea
of a gift or of a compromise
between
the parties. The other party was
not
bound to accept money so paid, but
if
he accepts it he must be
considered
to have agreed that it should be
recoverable if not due; in the
language of the
DIGEST
, the
negotium
between the parties is a
contractus
(
Donellus
, lib. 14. c. 14,
3).'
The above passage was referred to
by Wessels
JP. in
LILIENFELD & CO v
BOURKE
, 1921 T.P.D.
365 at p 370, where the learned
Judge explained
as follows as to what De Villiers,
AJA., meant
by payment 'under protest':
'I
do
not think the learned Judge
23
meant to lay
down the general rule
that a protest always
makes a payment made under it an involuntary payment.
The
learned Judge shows clearly when
dealing
with the passages quoted from
the
DIGEST
that what was meant was
that if a person
says
'I
will pay
you
now subject to the condition that if it
is afterwards found that this payment was not due, then we will
consider it as if no payment had been
made.
If the word protest is used as an abbreviation of that form of
expression, if it is used to mean a payment under the condition
that
if it is afterwards found that the payment was not due, it must be
handed back,
I
have
no quarrel with what was said by the learned Judge.
But
if he meant that any payment made
which is
accompanied by words protesting against the payment is sufficient to
enable the solvens to get the money back again,
I
do not agree with such a view.
I
do not think that if a person pays money
simply saying that he pays it under protest, that that is equivalent
to payment under pressure.'
The above seems
to me, and
I
say
so with due
respect, to be a correct
statement of the law.
In the present case the
Municipality of Uitenhage paid the charges levied pursuant to
24
the 5 per cent
tariff increase, but, not only did it deny liability and protest
against paying it, it also, by express stipulation,
reserved the
right to recover the moneys paid if such were found not to be due.
I
can hardly see what else the Municipality
of Uitenhage could have done to protect its interests. The
Municipality of Port Elizabeth,
in accepting payment, noted the
reservations
'under which
you are paying the
electricty accounts
submitted',
and, while it indicated that
accounts would continue to be rendered in accordance with the
increased tariff, raised no objection to
the reservations made by the
Municipality of Uitenhage. It must, therefore,
I
think, be regarded as having by implication
agreed to accept the moneys subject to the reservations made. That
being so, there can,
in my view, be no question but that the moneys
paid in excess of what was legally due can be recovered. A
declaration as prayed for
by the Municipality of Uitenhage with
respect to such moneys should, therefore, have been made by the Court
a quo."
To create a true alternative cause
of action,
as was stated by Wessels JP in the
LILIENFELD
case
referred to in the dictum quoted
above, the understanding
between the parties would have to
be that the creditor
undertakes to repay the money if
it is eventually
25
determined not to have been due.
In such a case the
creditor's promise to repay would
be conditional on the
finding that the debtor's prior
payment to him was
wrongly made. Where it is stated
in
GLUCKMAN v JAGGER
1929 CPD 44
at 47, in a passage
frequently referred to:
"As a general rule this
action [the condictio indebiti] is available whenever a man pays
money which is not due if he pays it
by mistake or under duress
or
when it is made a condition of the payment that if it is found not to
be due it is to be returned
...",
the portion underlined is open to
two fundamental
objections: firstly, the cause of
action is no longer
the condictio, it is an agreement;
and secondly, the
condition ("if it is found
not to be due") does not
attach to the debtor's payment but
to the creditor's
promise to make restitution.
Whether such an agreement was
concluded will,
of course, be a question of
interpretation of the
exchanges between the parties. By
merely adding the
26
words "under protest" to
a payment a debtor cannot unilaterally foist an agreement to repay on
his creditor. Prom the creditor's
point of view, what he is accepting
may simply be payment of a valid debt - and not an offer to make
restitution; and the words "under
protest" merely serve to
record the debtor's attitude as described in (ii) above. Otherwise,
if the creditor was put to an election,
as is suggested in
UNION
GOVERNMENT v GOWAR
,
supra
, in the dictum quoted earlier
("The other party was not bound to accept the money so paid, but
if he accepts it he must be considered
to have agreed that it should
be recoverable if not due."), every payment under protest
implies a contingent promise to repay
- and thart, as Wessels JP was
at pains to point out in the
LILIENFELD
case (in the passage
quoted and approved by this Court in the
PORT ELIZABETH
MUNICIPALITY
case, supra, at 742 A), is simply not the law. In
this respect a payment under protest differs markedly from a tender
of payment
in full
27
and final settlement. Such a
tender, made animo contrahendi, the creditor may reject with impunity
(
HARRIS v PIETERS
1920 AD 644
;
VAN BREUKELEN EN 'n ANDER v
VAN BREUKELEN
1966 (2) SA 285
(A)); a payment, made animo
solvendi, whether under cover of the words "in full and final
settlement" or "under protest",
he may not, lest he
finds himself in mora creditoris. And the reason is that the words
"under protest", unlike the words
"in full and final
settlement" when attached to a tender, refer not to the balance
of the debt or the payment as such but,
as stated earlier, to its
subsequent recovery. Here the payments in guestion were undoubtedly
made animo solvendi, with the express
purpose of protecting the Bank
against penalties. That purpose would have been defeated, leading to
an impasse, if the Commissioner
were at liberty to reject each
payment because it was accompanied by the words "under protest".
In the
PORT ELIZABETH
MUNICIPALITY
case, supra,
28
it was the manner in which the
payee responded to the payment, tendered under protest and with
express reservation of the right to
recover, which reinforced the
inference that the payee had agreed in advance to refund the payments
made to it, should it afterwards
be established that such payments
had never been due. In the instant case the Bank did not expressly
reserve its right, to recover
the sums paid, nor did it expressly
invite the Commissioner to agree to a suggestion that the sums be
repaid if the dispute should
be resolved in its favour. But there are
other features supporting the contention of counsel for the Bank that
it was in effect agreed
between the parties, because the payments
were made under protest, that the Commissioner would be obliged to
repay the sums so paid
should it be determined that the duties had
never been due: thus the payments were made during the course of a
continuing and genuine
debate between them about the correct
interpretation of
29
the statute governing such
payments; the Commissioner, who insisted on payment in accordance
with his own view, consequently knew
that the phrase "under
protest" accompanying each payment was not just an empty
gesture; the Commissioner was the public
official entrusted with the
administration of that very statute (section 2(1)); since he derived
his authority from the statute itself,
it follows that if his reading
of it should prove to be wrong he would not be empowered to retain,
and hence would be obliged to
refund, what was wrongly paid to him.
Where, as in this case, a public official demands payment in terms of
a statutory provision,
and payment is thereupon effected "under
protest" because the liability (or the sum) is disputed, it is
more likely than
not (cf.
JOEL MELAMED AND HURWITZ v CLEVELAND
ESTATES (PTY) LTD
[1984] ZASCA 4
;
1984 (3) SA 155
(A) at 164G-165G) that it was
tacitly understood between the parties that the sum so paid would be
refunded if the official view
should
30
subseguently
prove to be the wrong one; such would certainly have been the
taxpayer's intention and since the official, bound as he
is by the
statute, would have had no statutory justification to retain what he
should never have claimed, he can scarcely have held
a contrary view.
In those circumstances one would be on safe ground,
I
think, in inferring a tacit agreement
between the parties along the lines suggested by counsel for the
Bank. But it is, not necessary
to come to a firm conclusion on the
issue. One can readily assume, in favour of the Bank, that the
parties had reached such an agreement.
It was on that very postulate
(that the Commissioner assumed the contractual duty to effect
repayment if the decision should go against
him) that counsel for the
Bank sought to develop the further submission that the Commissioner
was in mora, and hence liable to pay
mora interest, from the moment
each
31
payment was accepted by him. (The
amount involved, computed on that premise, was R223 671,29.)
I
have
to disagree. To be in mora there must be a debt and the debt must be
enforceable. (STEYN :
MORA DEBITORIS
VOLGENS DIE HEDENDAAGSE ROMEINS-HOLLANDSE REG
,
p 40; DE WET AND YEATS :
KONTRAKTEREG EN
HANDELSREG
, 4th ed, 147; JOUBERT :
LAW
OF SOUTH AFRICA
, vol 5, par 203.) The
Commissioner could not be in mora as regards repayment until such
time as it was decided
that a duty to repay
existed. That was the very point of
their
understanding: that the money would only be
refundable
once it has been established (by a tribunal or
by
compromise) that the Commissioner misconstrued the statute and was
obliged to repay the money. Any claim by the Bank for repayment
to be
made prior to the determination of the dispute could be met by the
Commissioner with the defence that such a
claim would be
premature and might yet
prove to be idle.
32
That, in my view, is the short and
simple answer to the Bank's contention: the Commissioner was not in
mora and so cannot be liable
for interest a tempore morae.
It does not
really assist the Bank to contend, as its counsel did, that the order
of the Court below did
not create the
Commissioner's obligation to return the money to the Bank but that it
merely declared and gave effect to that obligation.
That may well be
so, once the order was granted. But that does not mean, as counsel
suggested, that his obligation to repay did
not remain in
abeyance pending the
judgment, and consequently that it was forthwith enforceable, even
before judgment. It
was not, and the Bank
itself never understood it to be, immediately repayable. In the
various letters accompanying the payments the
Bank on each occasion
stated:
"As we have not yet finalized
this matter with
33
the authorities, in order to avoid
any penalty ... we hereby make payment under protest ..."
Judging from these letters the
Bank's attitude was that a
ruling would still have to be
obtained before the issue
was resolved. There is no mention
in them of any
recovery of payments, let alone
any immediate repayments;
quite plainly these letters never
purported to serve as
letters of demand. It would indeed
have been contrary to
the Bank's own understanding of
the position at the time,
as evidenced by these letters, to
have expected the
Commissioner first to accept
payment (to enable the Bank
to avoid paying penalties) and
then to restore payment
(to enable the Commissioner to
avoid paying mora
interest), all at the same time.
And if that was not the
Bank's understanding it most
certainly would never have
been the Commissioner's.
The situation might have been
different if
there had been a separate cause of
action, independent of
34
the tacit agreement, entitling the
Bank to demand repayment; for in that event mora interest may well
have been payable from the date
stipulated in a proper demand. That
would have been so, for instance, if the payments in question had
been made under duress and
protest. But that, for the reasons stated
earlier, is not the case.
The Bank, confident of the
validity of its views, should either have refused to pay such duties
or, if it was anxious to avoid paying
penalties yet keen to recóver
lost interest on the sums paid to the Commissioner, it should have
stipulated for such interest
in its letters accompanying payment, in
the hope, firstly, that the Commissioner would agree to the
suggestion, and, secondly, that
its views on the merits of the main
point would ultimately prevail. That such a suggestion, if acceded
to, would have had distinct
advantages for both sides, as counsel
stressed in argument, does not, however, mean that it was
35
incorporated into their agreement
as a matter of course.
In my view there is no call for
assuming that it was, and
in fairness to him counsel for the
Bank never contended
that interest was thus claimable
ex contractu, as
distinct from a tempore morae.
Counsel for the Bank did not
address any
argument in support of the
approach adopted by the Court
a quo on this part of its order.
According to the Court
a quo the Bank was entitled to
interest at the legal rate
in respect of each payment from
the moment such payment
was received by the Commissioner.
"By accepting such a payment
it deprived the applicant of the benefit and the fruits of the money
from the date of payment. On
the principles discussed in
AMALGAMATED
SOCIETY OF
WOODWORKERS OF SOUTH AFRICA AND ANOTHER v DIE 1963
AMBAGSAALVERENIGING
1968 (1) SA 283
(T) the applicant is entitled
to interest and it should run from the date of payment."
With respect,
I
am unable to agree with this line of
reasoning if it is suggested
thereby that, because the
36
payee was
enriched at the expense of the taxpayer, interest is due on and
should run from the date of receipt of the money.
I
am not aware of any principle of law which
entitles one party to demand interest at the legal rate from another
simply because the
former has been deprived of the benefits and
fruits of the money which he had paid to the latter.
BALIOL
INVESTMENT CO (PTY) LTD v JACOBS
1946
TPD 269
suggests the opposite: that interest is not ipso facto
recoverable; it would be
payable only if
the parties had so agreed or if the payee
was
in mora. In any event there was neither allegation
nor
proof that the Commissioner, by utilising the money
paid,
was enriched at the expense of the Bank. And, finally, the judgment
in
AMALGAMATED SOCIETY OF WOODWORKERS OF
SOUTH AFRICA AND ANOTHER v DIE 1963 AMBAGSAALVERENIGING
1968 (1) SA 283
(T) does not, with
respect,
support the proposition on which the Court a quo appears to rely,
namely, that interest runs from the date
37
of receipt of the money. Leaving
aside other perhaps contentious aspects of that judgment (cf.
DE
VOS
, 1968 THR-HR 111), one principle it does reaffirm is that
mora interest in respect of a liquidated money debt would run from
the
date when payment was duly demanded (cf. 285 D-G, 287B). But
that, of course, presupposes a debt which, at the time, was
enforceable
- which is the very feature lacking in this case.
In the result
I
am of the view that no interest
was
recoverable by the Bank from the Commissioner prior to the decision
of the Court a quo that no stamp duties were payable. Only
then would
interest become payable.
Such interest on
the capital sum awarded, so we have been informed from the bar, has
indeed been paid.
The appeal succeeds with costs,
which are to include the costs of two counsel. The order of the Court
a guo is altered by deleting
paragraph 2 thereof.
38
P M NIENABER AJA CORBETT CJ BOTHA
JA KUMLEBEN JA
Case No.381/88
E du P
IN THE SUPREME COURT OF
SOUTH-AFRICA (APPELLATE DIVISION)
In the matter between:
THE COMMISSIONER FOR INLAND
REVENUE
Appellant
and
FIRST NATIONAL INDUSTRIAL BANK
LIMITED
Respondent
Coram:
CORBETT CJ, BOTHA,
KUMLEBEN JJA, NICHOLAS et NIENABER AJJA
Heard:
Delivered:
15 March
1990.
18
May 1990
2
JUDGMENT NICHOLAS AJA:
I
have
had the privilege of reading the judgment
of NIENABER AJA
in draft. With certain of his views
I
am
in
respectful agreement,
viz
-
(i) that s. 32(1)(a) of the Stamp
Duties Act
77 of 1968 does
not apply in this case; (ii) that the
condictio
indebiti
can lie
against
the Commissioner for Inland
Revenue ; and
(iii) that the fiscus is not immune to a
claim
for
mora
interest. On other points, however,
I
respectfully disagree with my learned
colleague. These are:-
(a) His view that the
cause of action of
First National and Industrial Bank
Ltd ("the Bank") is not the
condictio
indebiti
;
(b) The assumption which he made
that the
Bank's claim was based on a new and
independent cause
of action; and
that consequently
(c)
Mora
interest could not
run prior to the
date of the judgment of the court
a quo.
As a result
I
do not agree that the appeal should be
upheld.
In what follows
I
deal in turn with each of the
points of disagreement.
3 (a)
Condictio indebiti
:-
The
condictio indebiti
has
its roots in Roman Law. The
fons et origo
is D. 12.6
de
condictione indebiti
. In
terms of leges 1 and 2:
"1. ULPIANUS.
. nunc
videndum de indebito
soluto
.
Et quidem si quis
indebitum ignorans solvit, per hanc actionem
condicere potest:
sed si sciens se non
debere solvit, cessat repetitio
.
2. IDEM.
siquis sic solverit,
ut, si
apparuisset esse indebitum vel
Falcidia emerserit, reddatur, repetitio locum habebit: neqotium enim
contractum est
inter eos
...."
Monro,
The
Digest of Justinian
Vol
II,
p 306, gives this
translation:
"1 PAPINIANUS
(sic)
.... We will now consider
the case of the payment of money
that was not due.
1. To begin with, where a man pays
what he does
not owe, in ignorance of the fact, he can sue
to
recover it by this action; but if he paid knowing
that he
did not owe it, there is no right of action
for.the return of it.
2. THE SAME If a man pays on the
understanding that if it should
prove not to be
4
due, or it should turn out to be a
case where the
lex Falcidia
applies, the money should be
returned, an action for the return will be in place, as there is a
contract concluded between the parties..."
An aspect df the
condictio
indebiti
which is relevant to this case was considered by DE
VILLIERS AJA in
Union Government (Minister of Finance v Gowar
1915 AD 426.
(The other members of the court
did not refer to his views, but based their decisions on various
other grounds.) At 445-446 DE VILLIERS
AJA made a detailed
examination of the old authorities, in the course of which he cited
the Digest, Donellus, Voet, Gothofredus,
Gluck and Pothier. The
reference to Gluck is of particular interest. He says (
Ausfuhrliche
Erlanterung der Pandecten
, Vol. 13 sec 834) that the
condictio
indebiti
falls away if the payment of the
indebitum
occurs
scienter
and voluntarily, because anyone who gives what is not
owing
scienter
and voluntarily, renounces entirely his rights
and property therein. (In a
5
footnote to this passage he gives
a number of citations to
the
Corpus Juris
, saying
that in all these laws it is stated:
Indebitum solutum sciens non
recte repetit
.) Later in sec
834 Gluck says (pp. 124-125) that
the general rule is subject
to exceptions, including:
"2. if the payment of the
indebitum occurs under such circumstances as to exclude the
presumption that the payer desires to make
a gift, including
(b) if someone when making a
payment protested that he desires to retain his right if he pays
something
indebite
."
(My translation). Here he refers
to
Voet
12.6.6 who, citing
D 12.6.2, says (Gane's
Translátion, vol II, p. 838) -
"Hence also it was sometimes
provided by express covenant that if the payment should be shown not
to have been due it should
be returned."
After his survey of the old
authorities, DE VILLIERS AJA concluded (p 445 in
fin
to p
446):
"The result of the old
authorities therefore is ... if a person pays a debt not due
knowingly and voluntarily he is not able
to recover. But if he pays
under protest he is entitled to recover, for the protest is
inconsistent with the idea of a gift or a
compromise between the
parties. The other
6
party was not bound to accept
money so paid, but if he accepts it he must be considered to have
agreed that it should be recoverable
if not due; in the language of
the
Digest
, the
negotium
between the parties is a
contractus.
.."
Sir HENRY JUTA (who was a member
of the court
which decided
Gowar
's case)
was sitting as Judge President
of the Cape Provincial Division
when he referred in
Wilken
v Holloway
1915 CPD 418
at
421-422 to the proposition
formulated by DE VILLIERS JA,
namely, that the
condictio
indebiti
lies where a
person has protested, on payment, that
he retains the right to recover,
if he has paid anything that
was not due. He quoted D.12.6.2
and said, "This seems to
be based on the principle that by
accepting the money so paid
an agreement is contracted, i.e.,
that the person accepting
the money does so on the
understanding that it will be repaid
if not due." He said that
"for the decision of this case
only," he was prepared to
accept the law as laid down by DE
VILLIERS AJA, and continued:-
"The
basis, as
I
have
said, seems to me to be
7
that a tacit agreement arises
between the person paying under protest and the person receiving the
money, that it can be recovered
if not due: for if the creditor does
not wish to agree to this, he has only to refuse the money. But what
is the position of the
creditor who had begun legal proceedings if he
refuses to accept the money offered under protest and proceeds with
his action?"
In such a case, he decided, the
principle did not apply.
In
Lilienfeld & Co v Bourke
1921 TPD 365
, Sir JOHN
WESSELS (who was also a member of
the court which decided
Gowar
's case (
supra
))
was sitting as Judge-President of the
Transvaal Provincial Division. He
dealt with an argument by
counsel which relied on
dicta
by DE VILLIERS AJA IN
Gowar
's
case. He said that he did not
think that DE VILLIERS AJA
meant to lay down the general rule
that a protest always
makes a payment under protest an
involuntary payment. He
said:
"The
learned Judge shows clearly when dealing with the passage quoted from
the
Digest
that what was
meant was that if a person
says
'I
will pay
you now
subject to the condition that if it
is afterwards found that this payment was not due, then we will
8
consider it as
if no payment had been made.' If
the word
protest is used as an abbreviation of that form of expression, if it
is used to mean a payment
under the
condition that if it is afterwards found that the payment was not
due, it must be handed back,
I
have
no quarrel with what was said by the
learned
Judge. But if he meant that any payment
made
which is accompanied by words protesting against the payment is
sufficient to enable the
solvens
to get the money back again,
I
do
not agree
with such a view.
I
do not think that if a person pays money
simply saying that he pays it under protest, that that is equivalent
to payment under pressure."
In delivering the judgment of this
court in
Port Elizabeth
Municipality v Uitenhage
Municipality
1971(1) SA 724(A)
MULLER JA said at 742 A that this
seemed to him to be a
correct statement of the law.
The phrase "under protest"
is not a term of art.
LORD LANGDALE MR discussed it in
Re Massey
(1845) 8 Bea 462
;
50 ER 181:
"These words have no distinct
meaning by themselves, and amount to nothing unless explained by the
proceedings and circumstances."
To the
circumstances of the present case
I
now
9
turn. In May 1984 the Bank's
representatives had discussions with the Department of Inland Revenue
in the course of which they raised
the question of the Bank's
liability to pay stamp duty on debit entries relating tó
transactions under its "Barnib Auto
Cardholder Agreement".
On 30 May 1984 it submitted a letter containing representations in
this regard. With reference to the
letter,the Commissioner for Inland
Revenue wrote to the Chief Manager of Barclays Auto Division
(Barclays being the former name of
First National Bank):â
Dear Mr Joubert
STAMP DUTY ON DEBIT ENTRIES
I
write
with reference to your letter dated 30 May
1984
and have to advise you that unless this office
can
be satisfied that the operations of the corporate vehicle fleet
management systems fall outside of the scope of the Limitations
and
Disclosure of Finance Charges Act, the debit entries made in respect
of the transactions concluded within such systems will be
liable for
the abovementioned duty.
It is therefore suggested that you
and the other interested parties approach the Registrar of Financial
Institutions under whose administration
10
the Limitations and Disclosure of
Finance Charges Act falls, for a ruling in this regard.
Yours faithfully
FOR COMMISSIONER FOR INLAND
REVENUE
Acting on this suggestion, the
Bank did approach the Registrar of Financial Institutions on 27 July
1984. The Registrar wrote on 15
August 1984 expressing the opinion
that stamp duty was payable.
In the light of
this opinion, and because of the Commissioner's attitude, and
apprehending that it would
become liable to
severe penalties if its view as to liability
turned
out to be wrong, the Bank paid to Inland Revenue from time to time
stamp duties on all debit entries made in
respect
of Autocard transactions during the period 21
November
1984 to 20 May 1986. Each payment was made under cover of a form
letter (Annexure
"I")
which
was in the following terms:
11
The Receiver of Revenue Department
of Finance 1 Rissik Street JOHANNESBURG
BY HAND
Dear Sir
STAMP DUTY: DEBIT ENTRIES IN
RESPECT OF AUTO CARD
SCHEME
We refer to our previous
correspondence regarding this matter.
As we have not yet finalized this
matter with the authorities, in order to avoid any penalty in terms
of the new section 19 of the
Stamp Duties Act, 1968, (as inserted by
section 8 of the Revenue Laws Amendment Act, 1984), we hereby make
payment, under
protest, of stamp duty in respect
of the
debit entries to our Auto Card
holders.
Yours faithfully GS MENASHE Chief
Manager
In Annexure
"I"
the Bank stated that it was making
payment
"as we have not yet finalized the matter with authorities"
(and hence not because it admitted payment to be owing),
and it did
so in order to avoid the punitive
12
penalties which would be payable
if it did not pay and its view as to liability for stamp duty turned
out to be wrong. It was tendering
payment under protest, by which
clearly it meant with reservation of its right to institute an action
for repayment (
condicere
,
repetere
). The Commissioner
by accepting payment subject to that reservation, must be taken to
have agreed thereto. In the words of D.12.6.2.
neqotium enim
contractum est inter eos
. But for such a contract, the Bank
could, if it sued for repayment, have been met with an exception of
no cause of action because
si sciens se non debere, cessat
repetitio
, whereas, a contract having been concluded,
repetitio
locum habebit
.
In my opinion therefore the Bank's
true cause of action is the
condictio indebiti
and it falls
squarely within the principle of D.12.6.2. (b)
INDEPENDENT
CONTRACT?
An alternative argument advanced
on behalf of the Bank was that there had been established a tacit
independent
13
contract - independent in the
sense that the Bank could sue on it without having to rely on the
condictio indebiti
.
In his judgment NIENABER AJA
considers that one would be on safe ground in inferring a tacit
agreement between the parties. Although
he does not consider it
necessary to come to a firm conclusion on the guestion, he is
prepared to readily assume, in favour of the
Bank, that the parties
did reach such an agreement.
It is suggested that the agreement
between the parties was that the Commissioner undertook to repay the
money if it was eventually
determined not to have been due; in other
words, that the Commissioner made a promise to repay conditionally on
a finding that the
Bank's payments were wrongly made.
There are
dicta
in some of
the cases which superficiaily seem to offer support for a finding
that that is the agreement in the case of the receipt
of a payment
under protest. (See
Gluckman v
Jagger
1929 CPD 44
at 47, and
14
the passage in
Lilienfeld
's
case which is quoted
supra
.) In my respectful opinion however
there is no room on the facts of this case for an implication that
the Commissioner, by accepting
payment, undertook to do anything, or
made any promise to repay. The contract which was made was not
independent, but was ancillary
or subsidiary to the
condictio
indebiti
: it did not create a substantive right but
recognized that the Bank had the procedural right to seek a
condictio
(or
repetitio
) despite the fact that the
sol
ú
tio
was being made voluntarily and with knowledge that it was made
indebite.
(c)
INTEREST.
On the assumption that the Bank's
claim was based on an independent contract,
NIENABER AJA
holds
that because the condition in that contract was not fulfilled until
judgment was given in the court
a quo
, the Commissioner was
not liable to pay interest prior to the date of the judgment.
Since in my opinion the Bank's
true claim was the
15
condictio indebiti
, the
question of
mora
interest is here
considered on that basis.
The general rule of the
Roman-Dutch law is that interest is not payable unless there is an
agreement to pay it or there is default
or
mora
on the part of
the defendant.
(Baliol Investment Co (Pty) Ltd v Jacobs
1946
TPD 269
at 272.) The weight of authority in Roman-Dutch law is in
favour of the view that interest is not recoverable under the
condictio indebiti
as such (
ibid
at 274). The question
is, therefore, whether the Commissioner was placed
in mora
,
and if so from what date.
It is settled and uniform practice
that a defendant is regarded as being
in mora
upon failure to
discharge his obligation after receipt of the letter of demand (
West
Rand Estates Limited v New Zealand Insurance Company Limited
1926
AD 173).
Counsel for the Bank submitted
that the Commissioner was
in mora
, either from the dates of
the
16
respective payments, or from 11
August 1986, or from 26 March 1987 (being the date of service of the
notice of motion).
In support of
the first submission it was argued that there was implicit in each
payment under protest a simultaneous demand for repayment.
I
do not agree. The purpose of the payments
was to avoid penalties and that required that the amounts concerned
should remain with the
Commissioner pending agreement or the outcome
of proceedings
instituted to compel
repayment. The implication was not that
the
Bank was demanding immediate repayment but that it w
á
s
reserving its rights to claim repayment at
a later stage.
The argument that 11 August 1986
was the relevant date was based on Annexure "K" to the
Bank's founding affidavit. This
is headed "Claim for Refund out
of Revenue" and is on form Rev. 16 which was completed by the
Bank. It was accompanied
by a letter setting out the history of the
matter and was delivered to the Revenue Department by hand
17
on 11 August 1986. The claim was
for a refund of R488 353,80, and purported to be a claim under s.
32(1)(a) of the Stamp Duties Act,
77 of 1968. This provides that the
Commissioner may make, or authorize to be made a refund in respect of
the amount of any overpayment
of the duty properly chargeable in
respect of an instrument if application for the refund is made within
2 years after the date of
such overpayment. The language of the
provision suggests that the Commissioner has a discretion, but it is
clear in my opinion that
what it does is to confer upon him a power
coupled with a duty to exercise the power when the conditions
prescribed have been satisfied.
(Cf
SAR & H v Transvaal
Consolidated
Land and Exploration Co Ltd
1961(2) SA 467(A)
at 502 C-F.) Annexure "K" was a claim for a definite sum of
money and was a "demand" or
interpellatio
as those
terms are understood in the law. It matters not that the reference to
s. 32(1)(a) was misconceived. There was attached "a
typical
letter of protest which accompanied each payment" - this was
presumably
18
the same as
Annexure
"I"
-
and it was submitted that the Bank
was not obliged to pay the stamp
duties from 21 August 1984
to 20 May 1986. Conseguently the
claim contained all the
information which could possibly
be reguired to be contained
in a letter of demand.
In my opinion, therefore, the
Commissioner was
placed in
mora
on 11 August
1986.
CONCLUSION.
Paragraph 2 of the order which is
appealed against reads:
"2.
interest on the amounts from the dates and at
the
rates set out in Annexure
"X"
to
the draft order handed in."
Annexure
"X"
is headed "Schedule of Prescribed
Interest
Rates" and sets out in three
columns the dates of each
payment of duty, the respective
amounts of duty paid, and the
rate of interest applicable
thereto. The first date is 21
August 1984 and the last is 20 May
1986. In view of the
conclusion under paragraph (c)
above, it is clear that the
order was incorrect - interest can
run only from 11 August
19
1986
The
quantum
of interest was
not an issue in this
appeal. That is made clear in the
appellant's heads of
argument:
"If it is held that the
Commissioner is obliged to pay interest to the Respondent, then the
Commissioner concedes that interest
should be awarded as set out in
Annexure "x" to the judgment."
Nor was the
quantum
of
interest in issue in the court a
quo,w
here it was common
cause that if interest was payable
by the Commissioner, it was
payable in the terms recorded in
paragraph 2 of the order. In this
court, the question only
arose only as a result of
questions from the Bënch.
Mr
Welsh
, leading counsel
for the Bank, readily
agreed that if paragraph 2 of the
order was incorrect, it
should not be allowed to stand but
should be appropriately
ammended. In the circumstances, an
amendment should not
affect the costs of appeal.
20
Subject
to an appropriate amendment of paragraph
2
of the order,
I
would
dismiss the appeal with costs,
including
the costs of two counsel.
H C
NICHOLAS AJA