Interlink Postal Courier SA (Pty) Ltd v South African Post Office Ltd (473/2001) [2003] ZASCA 24; [2003] 2 All SA 134 (SCA) (27 March 2003)

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[2003] ZASCA 24
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Interlink Postal Courier SA (Pty) Ltd v South African Post Office Ltd (473/2001) [2003] ZASCA 24; [2003] 2 All SA 134 (SCA) (27 March 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NUMBER 473/2001
In the
matter between :
INTERLINK
POSTAL COURIER SA (PTY) LTD Appellant
and
THE
SOUTH AFRICAN POST OFFICE LTD Respondent
___________________________________________________________________________
Coram: MARAIS, ZULMAN, CAMERON, CLOETE
et
LEWIS JJA
Heard: 24 FEBRUARY 2003
Delivered:
27 MARCH 2003
The
interpretation of
s 16
of the
Postal Services Act, 124 of 1998
in
relation to the provision of a ‘courier service’.
___________________________________________________________________________
J U D G M E N T
__________________________________________________________________________
MARAIS JA/
MARAIS JA
[1] I have had the benefit of reading the judgment of my
learned brother Zulman JA. I share his view as to the lack of merit
in
the preliminary point but I am unable to share his view as to the
fate of the appeal.
[2] I do not consider the meaning ascribed by the court
a quo
to the words “courier services” to be a restrictive
meaning. In my view, the ordinary meaning of those words does not
encompass
the depositing in a letter box at a given address of the
items listed in paragraph 1 (a) of Schedule 2 when they are intended
to
be delivered to a particular person.
[3] It is common knowledge that the facilities for the
reception of such items which exist in residential and professional
and business
properties in South Africa range from rudimentary to
highly sophisticated.
To say that a letter addressed not merely to a
particular address but to a named addressee at that address and which
is pushed through
the slot provided in a gate or door, and which
letter may lie upon the floor or in a letter box until someone (not
necessarily
the addressee) notices it and picks it up or takes it
out, has been delivered by a courier to the intended recipient is, to
my
way of thinking, to debase the commonly understood concept of a
courier service.
[4] It is so that the dictionary meanings of the word
“courier” all envisage a delivery of something but they obviously
do not
include a common or garden postman who “delivers” by
leaving an item at a street address. That this is so is, I think,
reinforced
by the structure of the Act which clearly envisages a
distinction between ordinary postal services (which plainly postulate
address
rather than addressee deliveries) and courier services. To
read the latter as requiring merely address and not personal
deliveries
would elide unacceptably the distinction that lies at the
heart of
s 16.
Accordingly, where a letter is addressed to a named
person and a courier service is to be provided then it is to that
person that
delivery must take place – not simply to the address at
which that person is thought to be. It is conceivable of course that

a courier might be engaged to deliver a letter or parcel to a
particular place as opposed to a particular person. But where the

method of delivery to a named intended recipient is merely to leave
the item at an address at which the intended recipient might
or might
not be, or at which the item delivered might be lost or
misappropriated or put aside or forgotten before it reaches the

recipient’s hands, I do not believe that it can be said, within the
meaning of the Act, to have been delivered to the intended
recipient
by means of a courier service. The method of “delivery” employed
has been no different from that of a common or garden
postman.
[5] That there are other elements present in the service
provided which are characteristic of a courier service takes the
matter
no further. If a critical element of a courier service is
lacking (and in my view actual delivery of the item to the named
intended
recipient or the intended recipient’s authorised agent to
accept delivery, as opposed to leaving it at his, her or its supposed

address, is such an element), it cannot be classified as a courier
service.
[6] I reach that conclusion simply by giving to the
words “courier service” what I take to be their ordinary meaning,
a meaning
which seems to me to be underscored by the context in which
they are used in the Act. I leave out of account such evidence as
there
might have been as to the meaning given to the expression by
the trade.
[7] It is also of some significance that the Act itself,
in dealing with the future licensing requirements for a courier
service
(s16(5)(d)(ii))
, requires that an applicant for a licence
must undertake,
inter alia
, to ‘track and trace the
whereabouts of any item received or collected for delivery by such a
person’s business undertaking’.
If it were contemplated that
delivery to a street address, where no evidence of receipt of an item
would be obtained, was sufficient
for such delivery, it is hard to
see how this requirement could be met. How would a courier track and
trace an item if it had been
simply left at a street address? While
the subsection does not, of course, define the nature of a courier
service, and while it
relates to undertakings to be made in future by
an applicant for a licence, it gives at least some indication of what
the legislature
meant by ‘courier’. Leaving an item in a postbox
does not allow for meaningful tracking and tracing, and thus it
cannot have
been intended that that form of delivery would suffice to
qualify the service as a courier service.
[8] It is ordered that the appeal be and is hereby
dismissed with costs including the costs of two counsel.
______________________
R
M MARAIS
JUDGE OF APPEAL
CAMERON
JA )
LEWIS JA
) CONCUR
ZULMAN
JA
INTRODUCTION
[1]
The
issue in this appeal concerns the appellant’s right to conduct a
‘courier service’ in terms of the
Postal Services Act, as
amended
1
(the Act). The court
a quo
(Fitzgerald AJ) interdicted and prohibited the appellant (the first
respondent a quo), at the instance of the respondent (the applicant
a
quo) from
inter alia,
providing
any type of 'reserved postal service which entails street delivery
of postal articles'. The judgment is reported
2
.
The appeal is with the leave of the court
a
quo
.
PRELIMINARY
POINT
[2]
In argument before this Court the appellant’s counsel sought to
reintroduce a point
in limine,
which had been expressly
conceded and abandoned in the court
a quo
. The point is this.
At the time when the application was heard in the Court
a quo
,
the respondent had not yet been issued a licence as contemplated in
s
16(3)
of the Act. Accordingly the appellant contended that the
respondent had no
locus standi
to complain that the
appellant’s street deliveries exceed the bounds of a ‘courier
service’ and infringed the respondent’s
right to conduct a
'reserved postal service'. The basis for seeking to resurrect the
point is that the concession is one of law
and is accordingly not
binding on the appellant. The respondent opposes the reintroduction
of the point on a number of legal grounds.
I believe that there is no
merit in the point, if only for the simple reason that the respondent
had a clear legal interest in
the subject matter of the dispute.
However, in the light of the conclusion that I have come to on the
merits of the matter, it
is unnecessary to consider the point any
further.
THE
ACT
[3]
The Post Office Act
3
was amended in certain respects and repealed in others by the Act.
Certain sections of the Act came into operation on 1 January
1999
whilst the remainder came into operation on 1 April 2000. It is to
be noted that in so far as this appeal is concerned with
the meaning
of English words that the English text of the Act was signed by the
President.
[4]
Chapter lll of the Act is headed ‘REGULATION OF POSTAL SERVICES’.
The chapter contains some 14 sections (ss 15 to 28). Of
direct
relevance to the matter at issue are ss 15(1) and 16(5) which provide
as follows -
'15(1) Subject to the provisions of this Act, no person
may operate a reserved postal service except under and in accordance
with
a licence issued to that person in terms of this Chapter.'
'16(5) (a) Any person who, immediately before the date
of commencement of this section provided a courier service of a type
contemplated
in Schedule 1, must be regarded as being licensed to
provide such a courier service, subject to paragraph (b).
(b) A person may not be regarded as being licensed in
terms of paragraph (a) if that person has failed to apply to the
Minister
through the Regulator for such a licence within 90 days
after the date of commencement of this section or within such
extended
period as the Regulator may allow.
(c) After receipt of an application in terms of
paragraph (b) the Minister must, subject to paragraph (d), grant the
application
and thereafter the Regulator must issue a licence to the
applicant.
(d) A person may not be licensed to provide a courier
service in terms of this subsection unless that person undertakes -
(i) to receive, collect and deliver items contemplated
in item 1 (a) of Schedule 1;
(ii) to track and trace the whereabouts of any item
received or collected for delivery by such person’s business
undertaking;
(iii) to deliver items within a definite time, in the
case of deliveries across international borders;
(iv) to deliver items within the Republic on the date of
receipt thereof or at the latest by 13:00 on the next working day; or
(v) to clear items through
customs, where applicable.'
THE
ABSENCE OF A LICENCE
[5]
The respondent no longer appears to attack the court
a
quo’s
conclusion that the appellant
is to be regarded as being licensed to provide a 'courier service',
notwithstanding the fact that
the appellant might have provided such
a service unlawfully prior to the commencement of s16.
4
I am in respectful agreement with this conclusion.
THE
CRUX OF THE JUDGMENT
A
QUO
[6]
The crux of the judgment of the Court
a
quo
on the essential matter now at
issue is encapsulated in the following remarks of Fitzgerald AJ
5
-
'Having
found that the first, third and fourth respondents are to be regarded
as being licensed to provide a courier service, I
now turn to deal
with the further submission of Mr Burger [counsel representing the
applicant in the Court
a
quo] that, in any event, and even in
regard to these respondents, a courier service does not involve the
speed delivery of postal
items but rather, as he put it,
'door-to-door deliveries'.
It
is apparent that no definition of courier service as used in s 16 is
to be found in the Act. In this regard Mr
Burger
submitted
that, where a statute deals with a particular trade or business and
employs a term which is used in that trade or business,
such term
should be given the meaning used in that particular trade or
business. (See
Kommissaris van Doeane en Aksyns v Mincer Motors
Bpk
1959 (1) SA 114
(A) at 119.)
Mr
Burger
submitted further that, insofar as the term 'courier
service' is used in the context of a statute regulating the postal
industry,
it is proper to have regard to its meaning 'in that trade'.
It is relevant in this regard that in the representations on the
proposed
Postal Bill of 1998, to which I have referred above, the
express carrier industry stated in para 2.5 as follows:
'(I)t
is important to take note and be mindful of the fact that the express
carrier industry provides that which is generally referred
to as a
"value added service", including,
inter alia, unlike the
traditional services rendered by the Postal Company, door to door
pick-up and delivery services,
customs clearance services,
meticulous proof of delivery including a track and trace service
which enables a client to pinpoint
the exact location of an article
at any particular moment in time. These services are provided on an
extremely time definite basis
with the result that the normal
business administration is not slowed down and/or hampered by
delays.'
In
answer, Mr
Heunis
[counsel representing the respondent in the
Court
a quo
] submitted that statutes are as a rule addressed
to the general public and not to a particular trade or section of the
community.
Therefore, so he continued, our Courts are reluctant to
draw the conclusion that words and expressions in a statute are used
in
a technical sense. (See
Association of Amusement and Novelty
Machine Operators v Minister of Justice and Another
1980 (2) SA
636
(A) at 660.)
There
is indeed no definition of the term 'courier service' in the Act. It
is also correct that s 16(5)(d) thereof does, as Mr
Heunis
contended provide an indication of the attributes of a courier
service. [The learned acting judge quoted the section and continued]
Accordingly,
Mr
Heunis
submitted that I should determine the nature of
courier services by reference solely to this section and to the
ordinary meaning
of the words used therein.
Mr
Burger
contended, however, that s 16(5)(d) itself contains
words that must be given a meaning, viz 'delivery' and emphasised
that these
words were used in the context of a courier service which,
as aforesaid, is itself not defined in the Act.
While
it is indeed so that the absence of any specific definition of the
term 'courier services' in the Act is deliberate, and while

acknowledging the belated inclusion therein at s16(5), it seems to me
that there is merit in these contentions of Mr
Burger.
Accordingly,
were I to give the language used in s16(5)(d) its ordinary,
grammatical meaning, as contended by Mr
Heunis
, I would, in my
view, thereby ignore that the Legislature did, in terms of the Act,
intend to preserve a statutory monopoly (albeit
while permitting
courier services within the activities of reserved postal services)
for the applicant.
Accordingly,
and having regard to the attributes of a courier service as described
in the representations made on behalf of the
industry (and to which,
albeit in another context, Mr
Heunis
submitted I should have
regard), the language used in s 16(5)(d), in my view, falls to be
restrictively interpreted to exclude
(notwithstanding the apparently
unqualified use of the words 'deliver' and 'delivery' therein) street
to street deliveries by a
courier service.
This
latter activity is so traditionally a fundamental characteristic of
the activities of the applicant that to ignore the meaning
ascribed
thereto in the trade in the interpretation of s16(5)(d) would serve
merely to undermine the obvious intention of the Act,
namely to
preserve the statutory monopoly of the applicant. A contrary
construction would, in essence, equate a courier service
with that
reserved service provided by the applicant, save for speed of
delivery, and the alleged powers to track and trace which
are said to
be particular to the courier service. This seems unwarranted.
In
all the circumstances I am of the view that Mr
Burger
is
correct in submitting that street to street deliveries of postal
articles, as opposed to door-to-door pick up and delivery services,

fall outside the services which are lawfully required to be provided
by a courier service.'
[7]
The central issue raised on appeal is whether Fitzgerald AJ was
correct in finding that the appellant was not to be regarded
as
providing a ‘courier service’ within the meaning of the Act to
the extent that it delivered postal articles to street addresses
as
opposed to making 'door to door' deliveries.
[8]
Schedule 2 of the Act, which is headed ‘unreserved postal
services’, deals (in its amended form) with ‘courier services’

as follows-
‘1. Unreserved
postal services include –
(a) all letters, postcards, printed matter, small
parcels and other postal articles that fall outside the ambit of the
reserved
services set out in Schedule 1 up to and including thirty
kilograms;
(b)
courier services
in
respect of items mentioned in paragraph (a); and
(c) any other postal service that
falls outside the ambit of the reserved services as set out in
Schedule 1’ (underlining supplied).
In
terms of item 1 of Schedule 1 (as amended) 'reserved postal services'
include-
‘
(a) all letters, postcards, printed matter, small
parcels and other postal articles subject to the mass or size
limitations set
out in item 3;
(b) issuing of postage stamps; and
(c) the provision of roadside
collection and address boxes.’
Item
2 of Schedule 1 (as amended) provides that-
'2. For
purposes of this Schedule, a letter means any form of written
communication or other document, article or object that is
directed
to a specific person or persons or specific address and is to be
conveyed other than by electronic means and includes
a parcel,
package or wrapper containing any such communication or article
conforming to the mass or size limitations set out in
item 3.'
Item
3 of Schedule 1 (as amended) provides that-
'The reserved postal services include all items
described in items 1(a) and 2 of a mass up to and including one
kilogram or size
which enables it to fit into a rectangular box with
the following dimensions:
length 458 mm
width 324 mm
thickness 100 mm
Cylinders having a maximum length of
458 mm and 100 mm thickness and or a mass of up to one kilogram are
regarded as letters.'
Item 4 of Schedule 1
sets out exemptions from letter mail, which are not subject to
licensing in terms of the Act. These exemptions
are not relevant for
present purposes.
[9]
The Act defines 'courier service' in s 1 as meaning 'a service
provided by a person licensed or registered to provide such a
service
in terms of this Act.' This definition affords no assistance in
determining what is embraced in a 'courier service'.
[10] Before
this Court, counsel for the respondent submitted that it is plain
from a reading of the Act as a whole that a distinction
is drawn
between a 'reserved postal service' and a 'courier' service' and
that, in counsel's words, 'never the twain shall meet'.
Counsel
conceded that this distinction was essential to his argument. Indeed
it is, for without it, counsel could not go on
to submit, as he did,
that whatever the ambit of a courier service may be, street
deliveries are a 'reserved postal service' which
only the postal
company can perform.
[11]
Counsel's cardinal submission is not correct. Section 16(5)(a)
expressly and in terms contemplates that a person shall be
regarded
as licensed to provide a courier service 'of a type contemplated in
Schedule 1' which, it is apparent (as both counsel
conceded), must
mean 'in respect of' or 'in regard to' the items specified in
Schedule 1. Item 1 refers to 'letters, postcards,
printed matter,
small parcels and other postal articles subject to the mass or size
limitation set out item 3' and item 2 defines
a 'letter' as 'any form
of written communication or other document, article or object that is
directed to a specific person or
persons or specific address...'
Section 16(5)(a) therefore contemplates a 'courier service' including
delivery of letters etc –
precisely the reserved postal service
which Fitzgerald AJ held was reserved to the respondent.
[12] The same
subsection ─ ss 5(a) ─ makes the deeming provision, which it
embodies 'subject to paragraph (b)'. It does not
make the deeming
provision subject to pararagraph (d). Paragraph (d) requires
undertakings by a person who is to be issued with
a licence. It is
of no assistance in interpreting what is meant by a courier service
for the purposes of s 5(a). It is a regulatory
provision, which deals
with the future ─ not the past. Had the Legislature intended that
it was only a person who had, before
the commencement of the Act,
performed the services in paragraph (d) who would be deemed to
perform courier services in respect
of reserved postal articles, it
would have made the deeming provision in paragraph (a) subject to
this condition also. It did not
do so. The reason is that the
Legislature recognised that couriers were illegally performing
reserved postal services and intended
to allow them to do so legally
in the future, provided certain undertakings were given. Those
undertakings were to be a condition
for the issue of the license ─
not a condition for the person to be recognised as having provided a
courier service as at the
date of commencement of the Act.
Furthermore it is to my mind significant that not even in s 16(5)(d)
did the Legislature require
an applicant for a license to undertake
to perform a door-to-door delivery service only. But even if regard
is had to s 16(5)(d)
the words ‘deliver’ and ‘delivery’ used
in section 16(5)(d) are not, as pointed out by the learned judge
a
quo,
defined. There is in my view no sound justification for
giving the words read in conjunction with the words 'courier
service',
the narrow meaning given to them by Fitzgerald J so as to
exclude deliveries to street addresses in the sense understood by the

court
a quo
. To my mind the ordinary meaning of the words
'deliver' and 'delivery' in the context of a courier service is not
to be disturbed.
The
South African Concise Oxford Dictionary
gives as one of the meanings of the verb ‘deliver’ - to ‘bring
and hand over (a letter or goods) to the appropriate recipient’
and
the noun ‘delivery’ as
inter alia
‘the act in of
delivering something, especially letters, goods or services.’ The
Encarta World English Dictionary
defines ‘delivery’ in
relation to mail as the ‘the carrying of sth [something] to a
particular person or to a particular
address’. It is in this
ordinary sense that the words are used in the Act.
[13]
I find nothing in the scheme or wording of the Act which supports the
restrictive interpretation given to the phrase ‘courier
service’
by the court
a quo
. On the contrary, if one has proper regard
to the ordinary meaning of the words, with reference to the context
in which they are
used as set forth in various dictionaries, I see no
legitimate basis for excluding street deliveries of postal items from
the operation
of a ‘courier service’ as contemplated in the Act.
As pointed out by Kotze JA in
Association of Amusement and Novelty
Machine Operators and Another v Minister of Justice and Another
6
‘
The
normal and permissible method available to a court to ascertain the
ordinary meaning of words is to turn to authoritative dictionaries
–
the most reliable sources of information in regard to the general
accepted usage of words - for aid.'
Amongst
such authoratative dictionaries one may usefully refer to the
South
African Oxford English Dictionary
7
where the meaning of the word ‘courier’ is given as ‘A
messenger who transports goods or documents in haste’.
Black’s
Law Dictionary
8
gives the following as the meaning of the word ‘courier’- ‘A
messenger esp. one who delivers parcels, packages, and the like’.
The Encarta World English Dictionary
9
defines the word ‘courier’ as follows- ‘A person or company
that delivers documents or small and valuable packages by hand’.

No dictionary to which I have had regard contemplates delivery to a
person as a characteristic, much less an essential characteristic,
of
the service provided by a courier. There are many reasons why a
person would employ a courier, other than the added security
which
person to person delivery, if offered by such a courier, affords.
Two that immediately spring to mind are speed and reliability
of the
service offered. Neither of these excludes street to street
deliveries.
[14]
Accordingly, the words 'deliver', 'delivery', and ‘courier service’
are to be given their ordinary natural grammatical
meaning in their
context in the Act. This is so because no special meaning is
indicated, and this would also accord with trite
principle of giving
effect to the intention of the Legislature as evidenced by the words
it uses, read in their ‘ordinary sense’
and in context. (See for
example,
Venter v R
10
,
Union Government (Minister of Finance) v Mack
11
,
Bhyat v Commissioner for Immigration
12
).
[15]
The respondent submitted that it was proper for Fitzgerald AJ to have
had regard to the meaning ‘in the trade’ of the term
‘courier’
(Cf
Kommissaris Van Doeane en Aksyns v
Mincer Motors Bpk
13
)
.
Reliance was placed upon extracts from written submissions made to
Parliament on behalf of 23 members of the Express Courier
Industry
prior to the Act being assented to on 20 March 1998. I immediately
point out that the appellant states that the respondent
has not shown
that the interpretation given by the 23 members is accepted by the
majority of the members of the industry and that
some 304 other known
providers of courier services were not represented in the written
representations in question. This statement
is not challenged by the
respondent. But that apart, as a general rule, statutes are addressed
to the general public and not to
a particular trade or section of the
community. Furthermore courts are reluctant to draw the conclusion
that words and expressions
in a statute are used in a technical sense
(
Association of Amusement and Novelty
Machine Operators)
14
.
[16]
The deponent to the respondent’s supplementary founding affidavit
(Mr P F Swart)
15
,
‘without attempting an all encompassing definition’, submits
that, ‘the following characteristics are the minimum elements
which
must be present before a postal service provider will be
categorised as a courier service by the postal industry:
36.1 Door-to-door collection and delivery (as opposed
to street delivery to mail boxes). This would include collecting the
item
from a particular person and delivering it in the hands of
another.
36.2 A track and trace system, of which the most
important components are proof of delivery and the ability to
determine the whereabouts
of a postal article at any given time.
36.3 The delivery of documents and parcels (as opposed
to ordinary letter mail or business accounts).
36.4 Express delivery within a guaranteed time frame
and which is faster than ordinary mail via the post office.
36.5 Value-added service, referring in fact to all of
the above services in respect of which the customer pays a premium
(i.e.
above ordinary mail tariffs).'
[17]
The appellant in its answering affidavit deposed to by its chief
executive officer Mr J C Wessels
16
denies that a ‘courier service’ provider must at least have the
characteristics listed by Swart in order to qualify as a courier
for
the purposes of the Act and submits that the Legislature ‘clearly
intended not to assign a particular, technical meaning
to the term
‘courier service’ and it must be therefore be accorded its
ordinary, grammatical meaning.’
[18]
There is thus an obvious dispute of fact on the papers as to the
proper meaning of the words ‘courier service’ in the industry.

But in any event I am of the view that the evidence of the 23 members
of the Express Carrier Industry is irrelevant and inadmissible
to
determine the meaning of the concept 'courier service' in the Act.
This is so since I do not believe that the words are used
in the Act
in any technical or special sense. The following remarks of Steyn
CJ in
Kommissaris van Doeane en Aksyns v
Mincer Motors Bpk
17
are instructive in this regard:
‘
Die
eerste vraag is wat onder "motorkarre" in hierdie item
verstaan moet word. Die appellant beroep hom op die reël
dat waar
'n Wet vir 'n bepaalde bedryf bedoel is, hy uitgelê moet word
volgens die betekenis wat die woorde in daardie bedryf
het, en beweer
dan dat hierdie item bedoel is vir die motorbedryf, dat die woord
"motorkar" in daardie bedryf 'n spesiale
betekenis het wat
'n afleweringswa van die onderhawige soort sou insluit, dat die
Parlement die woord in bedoelde sin gebruik het,
en dat hy toegelaat
moet word om die aangevoerde betekenis met getuienis te staaf. Na my
mening gaan hierdie redenasie nie op
nie. Genoemde reël sou geld
waar 'n woord of uitdrukking in 'n bepaalde bedryf of sake-afdeling
algemeen in 'n besondere sin
verstaan word deur die persone wat met
die bedryf of sake-afdeling en die daarin erkende taalgebruik
vertroud is, en waar dit blyk
dat die Wetgewer die woord of
uitdrukking in daardie sin gebesig het. Die aanwending van die reël
stuit in die huidige geval
teen verskillende moeilikhede.'
[19]
Insofar as the submissions made to Parliament may be regarded as part
of the legislative history of the Act, they would, on
the basis of
‘the approach adopted by South African courts for more than a
century'
18
,
be inadmissible. (See for example
Mathiba
and Others v Moschke
19
,
Mavromati v Union Exploration Import
(Pty) Ltd
20
and
S v M en Andere
21
.)
In any event it is significant that in
defining 'courier service' in the circuitous manner that it did in s1
of the Act, the Legislature
appears not to have had regard to the
submissions made by certain members of the Express Carrier Industry
in formulating a definition,
which accorded with their submissions.
[20]
I do not accept the reasoning of Fitzgerald AJ that it is ‘the
obvious intention of the of the Act’ to ‘preserve the
statutory
monopoly of’ the applicant, to permit of street deliveries of
postal articles.
I believe that there is substance in the
contention advanced in the appellant’s heads of argument to the
effect that the intention
underlying the inclusion of s16 was to
permit persons to provide a service complementary to, and in
competition with that of the
Post Office thereby recognising the
advantages of private enterprise and the constitutional right of
individuals to choose a trade
occupation or profession.
22
The balancing of interests of the respondent, couriers such as the
applicant and the general public was achieved by the prescription
of
terms and conditions in the granting of licenses to be issued to
persons who had previously carried on the business of couriers
prior
to the enactment of the Act. I also agree with the appellant’s
contention that the effect of the judgment of the court
a quo
would to a large extent close the window of opportunity afforded by s
16 of the Act to the appellant.
[21]
In all of the circumstances I am of the view that the court
a
quo
erred in concluding that street deliveries of postal
articles, as opposed to door-to-door pickup and delivery services,
fall outside
the services, which may lawfully be provided by a
courier.
[22]
I have had the benefit of reading the judgments of my learned
brothers Marais and Cloete JJA. I respectfully disagree with
Marais
JA's view as to the fate of the appeal. I concur in the judgment of
Cloete JA.
THE
ORDER
[23]
In my view the appellant should succeed in the point it raised on
appeal and should accordingly be awarded the costs of the
appeal.
That success cannot, however, carry the costs of the proceedings in
the court
a quo
as the respondent succeeded in obtaining the interdict embodied in
paragraph 3 of the Court's order,
23
against which there was no appeal. The third and fourth respondents
in the Court
a quo
did not appeal against paragraph 2 of the order and it cannot be
altered by this Court insofar as they are concerned. I would
accordingly uphold the appeal with costs and alter paragraph 2 of the
order of the Court
a
quo
so as to delete the reference to the appellant (the first respondent
a
quo).
-------------------------------------
R
H ZULMAN
JUDGE OF APPEAL
CLOETE JA
:
[1] I
have had the benefit of reading the judgments of my learned
colleagues Marais JA and Zulman JA. I respectfully agree with
the
latter and, with equal respect, find myself unable to agree with the
former.
[2] A
courier is 'a messenger who transports goods or documents'.
24
To my mind the essential characteristic of a courier service is the
right on the part of the customer to give directions to the
courier.
It is primarily the mandate given by the customer and accepted by the
courier which dictates the service to be provided
and which
distinguishes a courier from what Marais JA terms a 'common or garden
postman'. If the mandate is to make personal delivery
to a specific
addressee, then personal delivery must take place. The mandate can
equally be to make delivery to a post box at a
specific address. The
evidence discloses that
the
appellant is able to do either.
[3] Once
it is accepted, as it is by Marais JA, that a courier may be engaged
to deliver a letter or parcel to a particular place
as opposed to a
particular person (or such person's agent), what is characterised by
my learned colleague as the 'critical element'
of a courier service ─
delivery to a person ─ is lacking and it cannot accordingly be a
critical element in the definition
of a courier service.
[4] The
fact that most of the appellant's customers choose street to street
deliveries does not derogate from the fact that the
appellant is
subject to the directions of those who employ it. It is that
characteristic, and not the scale of the appellant's
street to street
deliveries, which is decisive. Furthermore the fact that a letter
will lie on the floor or in a letterbox at its
destination until
someone picks it up does not to my mind mean that it could not have
been couriered there. As Zulman JA points
out, a courier service is
not necessarily employed only because of the added security which
person to person delivery affords.
[5] I
have been unable to find in any dictionary which I have consulted
25
and I am unable to discern in the Act itself, any requirement that
delivery must be to a person before a service can be categorised
as a
courier service.
[6] So
far as the Act is concerned, I am unable, with respect, to find any
distinction in s 16, much less a distinction which lies
at the heart
of that section, between what Marais JA terms 'ordinary postal
services' on the one hand, and a 'courier service',
on the other.
Subsection 4(a) provides:
'A
reserved postal service of the postal company contemplated in this
section, excluding a courier service in respect whereof the
postal
company must be licensed or registered separately, may be provided by
a wholly-owned subsidiary of the postal company, without
such
subsidiary being required to hold a licence in terms of this Act if .
. .'
That
subsection contemplates that a reserved postal service includes a
courier service, otherwise it would not have been necessary
for the
legislature to exclude a courier service. In addition, subsection
5(a) provides:
'Any
person who, immediately before the date of commencement of this
section provided a courier service of a type contemplated in
Schedule
1, must be regarded as being licensed to provide such a courier
service . . .'.
The
type of service contemplated in Schedule 1 is 'reserved postal
services'. A distinction between 'ordinary postal services' and

courier services is not to be found in the Act itself. Indeed, the
former concept nowhere appears in the Act. It is the consequence
of
an unwarranted definition of courier services not dictated by the
Act. But perhaps the most telling feature of s 16 is that
ss (5)(d)
does not require a courier to undertake personal deliveries only, as
a condition for being granted a licence. I do not
interpret the
'track and trace' provision in s 16(5)(d)(ii) as impliedly importing
such a requirement. The phrase is nowhere defined
in the Act. The
evidence shows that the service provided by the appellant enables the
appellant to establish the whereabouts of
an item entrusted to it at
every stage from the time it is collected, up to and including the
time of delivery at a street address.
That in my view constitutes
compliance with the section. In addition, should a customer require
proof of delivery, the signature
of a recipient will be obtained. If
indeed all a licensed courier is permitted to do, is to make personal
delivery, then this essential
limitation would surely have been
included in s 16(5)(d), in terms; but it is not.
[7] Section
16 of the Act clearly contemplates that couriers will compete with
the postal company in the provision of reserved postal
services.
There is in my respectful view no basis, either on the ordinary
meaning of the phrase 'courier service' or to be found
in the scheme
of the Act, for limiting that competition to person to person
deliveries. And once it is plain, as it is from s 16
of the Act, that
competition is to be allowed, it cannot be reasoned (as was done by
the learned Judge in the Court
a quo
) that street deliveries
must be excluded from courier services because this function was
traditionally reserved for the postal
company: the whole purpose of s
16 is to break that monopoly.
[8] I
would accordingly uphold the appeal with costs and alter the order of
the Court
a quo
as proposed by Zulman JA.
………………
T D CLOETE
JUDGE OF APPEAL
1
124
of 1998
2
2002(1) SA 221 (C)
3
44 of 1958
4
Judgment of the court
a
quo
231B
5
232G – 234C
6
1980 (2) SA 636
(A) at
660 F-G
7
2002
8
Seventh Edition 1999
9
Bloomsbury 1999
10
1907 TS 910
at 913
11
1917 AD at 739
12
1932 AD 125
at 129
13
1959 (1) SA 114
(A)
14
(Supra) at 660 D - E
15
Swart is a senior manager, postal distribution of the respondent in
the Western Cape and
describes
himself as 'someone who has been closely involved in the postal
industry for more than 7 years'.
16
Wessels founded a postal
services business known as City Post RSA in 1995
17
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
18
1959 (1) SA 114
at 119 B
- E
19
1920 AD 354
at 362
20
Per Devenish – Interpretation of Statutes at 124
21
1949 (4) SA 917
(A) at 927
1979
(4) SA 1044
(BH) at 1048 A-C
The
law appears to be developing slowly to allow some regard to be had
to the legislative history of unclear legislation ─ see
the
(separate concurring) judgment of Mokgoro J in
Case and Another v
Minister of Safety and Security and Others
Curtis v Minister
of Safety and Security and Others
[1996] ZACC 7
;
1996 (3) SA 617
(CC) at 624-5
paragraph 12, note 18; see also
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
at 404 – 5 paragraphs 12 – 15; even then the
stage has not been reached where regard may be had to submissions
made by certain
interested parties as opposed to statements of a
Minister introducing a Bill in Parliament.
22
Cf s 9 read with s 22 of
the Constitution of the Republic of South Africa Act 108 of 1996
23
234 G - H
24
South African Concise
Oxford Dictionary
25
The Oxford English
Dictionary (2
nd
ed); The Shorter Oxford English Dictionary (3
rd
ed); The Concise Oxford Dictionary (6
th
ed); South African Concise Oxford Dictionary; Webster's Third New
International Dictionary; Webster's Revised Unabridged Dictionary;

The Imperial Dictionary of the English Language; The Universal
English Dictionary; The American Heritage Dictionary of the English

Language (4
th
ed); Encarta World English Dictionary; Merriam-Webster Dictionary;
West's Legal Thesaurus/Dictionary; Black's Law Dictionary
(7
th
ed); Butterworths Australian Legal Dictionary; and s.v. 'koerier',
Woordeboek van die Afrikaanse Taal (Schoonees et al), Kernwoordeboek

van Afrikaans (De Villiers, Smuts and Eksteen), HAT (4
th
ed), Afrikaanse Woordeboek (Terblanche and Odendaal) andVerklarende
Afrikaanse Woordeboek (Labuschagne and Eksteen).