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[1991] ZASCA 163
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Willis Faber Enthoven (Edms) Bpk v Receiver of Revenue and Another (71/90) [1991] ZASCA 163; 1992 (4) SA 202 (AD); [1992] 4 All SA 62 (AD) (26 November 1991)
Case No
71/90 TPD
IN THE
SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the
matter between
WILLIS
FABER ENTHOVEN (EDMS) BPK
APPELLANT
and
THE
RECEIVER OF REVENUE
FIRST RESPONDENT
THE
REGISTRAR OF INSURANCE
SECOND RESPONDENT
CORAM
:JOUBERT, HEFER, NIENABER, VAN DEN HEEVER JJA et KRIEGLER AJJ
HEARD
:6 SEPTEMBER 1991.
DELIVERED
: 26 NOVEMBER 1991.
JUDGMENT
HEFER /
HEFER JA
:
In terms of sec 5 of the Insurance
Act 27 of
1943 as amended ("the Act")
no one is allowed to carry on
"insurance business" in
the Republic unless he is regis-
tered as an insurer. Although
"insurance business" is
defined in sec 1 as "
any
transaction in connection with
any
business defined in
this section" (such as "life busi-
ness", "fire business",
"marine business" and various other
forms of insurance) certain
transactions are deemed not to
amount to insurance business.
Among these are
"the activities of persons
transacting business in the Republic underwritten by underwriters at
Lloyds, but subject to the provisions
of sec-tion 60."
Sec 60 has two sub-sections.
Sub-sec (1) ap-pears under the heading "Requirements in respect
of busi-ness underwritten by underwriters
at Lloyds". The
intro-ductory part reads as follows:
3.
"(1)
The following provisions shall apply in connection with
business
underwritten by un
-
derwriters at Lloyds
and any person who
dces any act in the Republic relating to the re-ceiving of
applications for policies or the issue of policies
or the collection
of pre-miums in respect of
such business
; and any such person
shall, for the purposes of this section, be deemed to be carrying on
insu-rance business in the Republic; and
any ex-pression used in this
section shall according-ly bear the meaning assigned to it in secticn
1, notwithstanding the provisions
of para-graph (g) in the definition
of the expres-sicn 'insurance business' in section 1 con-tained:... "
(The
importance of the words that
I
emphasized
will soon
emerge.)
The"following
provisions" mentioned in the
introduction
are listed in twenty separate paragraphs.
Par (f)
reads as follows:
"(f)
Any person who carries on such insurance business in the Republic
shall within.a period of two months as from the expiration
of each
calendar year or within such further period as the registrar may
allow, pay to the receiver of revenue referred to in paragraph
(e) a
sum
4.
equal to two and a half per cent.
of the aggre-gate of all premiums paid during the preceding calendar
year 011 policies which were
effected through his agency in terms of
this section."
Sec 60(2) is in the following
terms:
" (2)
Except with the prior written approval of the registrar, applied for
as prescribed by re-gulation, no person who is deemed
for the
pur-poses of subsection (1) to be carrying on insu-rance business in
the Republic shall
effect or renew any
insurance business (other than rein-surance business) through a
broker at Lloyds which is not underwritten by
an underwriter at
Lloyds."
The first question in the present
appeal is whether the
tax imposed in terms of sec
60(1)(f) is payable, not only
in respect of policies
underwritten by underwriters at Lloyds,
but also in
respect of policies
not
so underwritten
but ef-
fected or renewed through a broker
at Lloyds in terms of
sub-sec (2). How this question
arose appears from what
follows.
Until December 1985 two companies
- Willis Faber
and Company (Pty) Limited ("Willis
Faber") and Robert
5. Enthoven and Company (Pty)
Limited ("Robert Enthoven") traded separately as insurance
brokers in the Republic. Part of
their business fell squarely within
the ambit of sec 60(1); but, presumably with the registrar's
appro-val, they also effected and
renewed insurance business (other
than reinsurance) through a broker at Lloyds which was not
underwritten by an underwriter at Lloyds.
In the belief that the
latter type of business also attracted the tax payable under sec
60(1)(f) they paid certain amounts to first
respondent.
During December 1985 willis Faber
and Robert Enthoven merged and became the present appellant who
sub-sequently instituted action
in the Transvaal Provincial Division
to recover the payments made in respect of 1984 and 1985 from first
respondent. Second respondent
(the registrar of insurance) was joined
as co-defendant by rea-son of the interest that he might have in the
matter. The pertinent
averments in the particulars of claim were the
6.
following:
"10.
The said payments referred to in paragraphs 6 to 9 above were paid
under the bona fide and reasonable but mistaken belief
that the said
amounts were due and payable to the First Defendant whereas in law
and in fact the said monies were not due nor payable
to the rirst
Defendant at all.
11. In the
premises the First Defendant has ceen unjustly enriched at the
expense of the Plain-tiff in the aggregate sum of R209 627,15.
"
(The
payments mentioned in para 10 were those made in
respect of
policies not underwritten at Lloyds.)
In his
plea first respondent denied these al-
legations
and pleaded that the amounts paid "were due
and owing
in terms of the provisions of section 60(1)
and
section 60(2) of the Act".
The matter
eventually came to trial before SPOEL-STRA J on the following issues:
Mhether
the payments in question were due in terms of sec 60(l((f) of the
Act and, if not,
whether
the appellant was entitled to recover
7.
them. Respondents' case on the
second issue was that the mistake on which the plaintiff relied, was
one of law and that this entailed
that the payments were not
recoverable. SPOEL-STRA J decided the first issue in appellant's
favour but upheld respondents' argument
on the second issue and
dis-missed the claim. Subsequently he granted the appellant leave to
appeal.
At the hearing of the appeal
appellant's coun-sel argued
in limine
that, in the absence of
a cross-appeal, the first issue must be taken to have been finally
disposed of in favour of his client. But
he is plainly wrong since
there is no judgment or order as envisaged
in sec 20(1) of the Supreme Court
Act 59 of 1959, as amen-ded, read with Rule 5(3) of the rules of this
court against which the respondonts
could appeal. As explained in
Pub-
lications Control Board v Central News Agency Ltd
1977(1)
SA 717 (A) at 745 A
8.
"(t)heterms
'judgment' and 'order' in the statute and Rule of Court do not
embrace every decision or ruling of a court. These
terms are confined
to decisions granting 'definite and distinct re-lief'."
(See also
Van Streepen and Germs (Pty) Ltd v Transvaal Pro
-
vincial
Administration
1987(4) SA 569 (A) at 580 D-F.) In
the
present case there is only a ruling that the wording of
sec
60(1)(f) of the Act "excludes section 60(2) business.
from tax".
No relief having been sought or granted on the
first
issue there is nothing against which the respondents
could
appeal. Not unlike the respondents in the
Publica
-
tions
Control Board
case (vid 748 A-B of the report) they
are
seeking to resist the appeal on a ground raised but re-
jected in
the trial court; and precisely like the respon-
dents in
that case they are entitled to do so even though
they did
not cross-appeal.
I
turn to consider the provisions of sec 60
of
the Act. (To avoid unnecessary repetition
I
shall re-
fer to
business underwritten by underwriters at Lloyds
9.
as "Lloyds business"; to
business not so underwritten but effected through brokers at Lloyds
as "other business";and
to a person who does any of the
acts mentioned in the in-troductory part of sec 60(1) in respect of
Lloyds business as a "Lloyds
agent".) By way of
introduction to his ar-gument that the tax imposed in sec 60(1)(f) is
payable in respect of both types of
business respondents' counsel
rightly stressed (1) that a person who is entitled to carry on Lloyds
business in terms of sub-sec
(1) may, with the registrar's approval,
transact other business in terms of sub-sec (2) as well; (2) that sec
60(1)(f) thus relates
to a person whose business may consist partly
of Lloyds business and partly of other business and (3) that the tax
is levied on "the
agqregate
of
all
premiums paid
during the preceding calendar year on
policies which were effected
through his agency in terms of this section
". His
argu-ment proceeded as follows: policies effected through a broker at
Lloyds in terms of sub-sec (2) are also "effected
10. through his agency" and
are so effected "in terms of this section" since "this
section" means the entire
section 60 including sec 60(2); and
therefore the tax is payable in respect of such policies as well.
This result is achieved, he
submitted, by applying the plain language
which the legis-lature used and which brooks no departure.
If we were to look only at par (f)
and sub-sec (2) the argument is undoubtedly a strong one. But this is
not how the question of the
interpretation of par (f) should be
approached since an examination of the other pro-visions of the Act
may reveal that the words
used do not mean what at first blush they
appear to convey. This does not entail a departure from their
ordinary meaning; it is a
quest for the intention behind the words in
the context in which they were used. And when this is done the
short-comings in the contention
begin to appear.
The argument depends entirely on
the correct interpretation of the words "policies which were
effected
11.
through his agency in terms of
this section". Seeing that par (f) forms part of sub-sec (1) the
first question is whether "this
section" means the entire
sec 60 or whet-her it means sec 60(1) only. In support of his
contention that it means the entire
section respondents' counsel
sub-mitted in his written heads of argument that "the
legisla-ture also carefully distinguishes
between sections and
sub-sections" and referred by way of example to secs 57 A(2),
56(1), 60(1)(f) and 60(2) of the Act. But
an examination of the Act
as a whole reveals that there is no consistency in the references to
sections and sub-sections: some of
the provisions do reveal the
careful distinction mentioned by counsel, but there is an equally
large number of examples of the indiscriminate
use of the word
"section". A striking illustration is afforded by sec 60
itself. In terms of sub-sec (1) a Lloyds agent
shall "for the
purpose of
this section
" be deemed to be carrying on
insurance business in the Republic. In sec 60(2) it is expressly
stated,
12. however, that the deeming is
for the purposes of sub-sec (1) only. Whatever certainty one might
otherwise have had about the meaning
of the expression in sec
60(1)(f) is, to say the least, seriously eroded by its inconsistent
use elsewhere in the Act and particularly
in sec 60 itself. Then
there is the expression "policies effected through his agency".
In parr (b) and (c) "a policy
effected through the agency of the
depositor" is mentioned (the"depositor" being a Lloyds
agent) and in par (d) "a
policy which was effected through the
agency of the said person" (again a Lloyds agent). "A
policy" may mean "
any
policy" but in every
instance it is abundantly clear fróm the context that a Lloyds
policy only is intended. Bearing
in mind that these paragraphs,
precisely like par (f), relate to a Lloyds agent who may be
conducting other business as well, it
is not unnatural to ask: why
should the same expression in par (f) be construed differently so as
to include other business? There
is no discernible reason either in
par (f)
13. or in any of the other
provisions. It will be noticed that the delimitation in the
introductory part of sec 60(1) of the operation
of the succeeding
paragraphs is in two parts - the one relating to a group of persons
(Lloyds agents) and the other to a type of
business (Lloyds
busi-ness). It does not emerge from the introduction whether they
were intended to operate in respect of Lloyds
agents in relation to
Lloyds business only or to other business as well. But all the
succeeding paragraphs - leaving a-side par (f)
for the moment - have
this in common that they regulate the manner in which
Lloyds
business is to be conducted. Many of them relate moreover to Lloyds
agents who, plainly to the knowledge of the legislature, may
conduct
other business as well. Again it is not un-natural to ask: can it
reasonably be accepted that the legislature would in par
(f)
interpose a provision aimed at other business too? The answer is
obvious particu-larly if par (f) is recognised for what it is
- a
provision
14.
purely and simply for the
imposition of a tax. Had this been the intention one would have
expected it to be ex-pressed in much clearer
terms than those
appearing in par
(f).
In my judgment, on the correct
interpretation of par (f), the tax is not payable in respect of other
busi-ness. The provision is in
any event at least reasonably capable
of such a construction and, being one in which a burden is imposed,
it must be construed in
the way more favourable to the subject
(
Israelsohn v Commissioner for Inland Revenue
1952(3) SA 529
(A) at 540 F-H,
Glen Anil Development Corporation Ltd v Secretary
for Inland Revenue
1975(4) SA 715 (A) at 727 F-G).
This brings me to the second issue
which, it will be recalled, was decided against the appellant on the
ground that the tax was paid
to first respondent as a result of an
error of law. The trial judge regarded himself bound by the decisions
of the full court of
the
15.
erstwhile South African Republic
in
Rooth v The State
(1888) 2 SAR 259 and of this court in
Benninq v Union Government (Minister of Finance
)
1914 AD 420
to the ef-fect that such an error is as a rule a bar to the
con
-
dictio indebiti
. In this
court appellant's counsel ar-gued that 'the mistake was not one of
law but a mistake of fact or of mixed law and fact. He
submitted
further that the decisions just referred to should in any event not
be followed.
The submission that the mistake
was not one of law is plainly wrong. How it came about that the
pay-ments were made will be discussed
later. At this stage it is
sufficient to say that Willis Faber and Robert Ent-hoven paid the tax
because they laboured under the
mista-ken impression that they were
legally obliged to do so. There was no misconception of any fact and
the mistake was purely one
of law. What remains to be considered is
therefore, firstly, whether a mistake of law is indeed
16.
as
a rule a bar to the
condictio
and if not, secondly,
whether the appellant
is in the circumstances of the case
entitled
to recover the amounts paid.
I
will
deal with
each guestion in turn.
More
than two centuri
ê
s
ago
Schomaker
(Cons
et Resp Jur 6.163) wrote that the
effect of an error of law on the
ccndictio
indebiti
was "tussen de
Rechtsge-
leerden niet uitgemaakt, maar tot
heden toe gebleven, en
zal altoos wel
blyven een grote twisappel onder dezelve,
zo
lang het Jus Civile Romanum eenige meerdere ofte min-
dere
auctoriteit in de dagelykshe vierscharen blyft be-
houden".
The dispute to which
Schomaker
refers stemmed
from Justinian's adoption of
certain principles of clas-
sical Roman law
in the
Corpus Juris
which at the same
time extended and amended
certain others. To keep the judgment within reasonable bounds
I
will not deal with this aspect of the
matter, or with the development of the
dispute
to which it led, in great detail. It is in any
17. event unnecessary to do so in
view of the extensive re-search conducted, not only in
Rooth's
case, but in recent years by academics like prof
W de Vos
and
prof
D P Visser
. A full account will be found in the former's
"Verrykings-aanspreeklikheid in die Suid-Afrikaanse Reg"
3rd ed at 23-26
and 70-71 and in prof
Visser's
thesis "Die
rol van Dwaling by die Condictio Indebiti" (1986) at 31-60 and
144-176. My own researches have revealed nothing
new. For present
purposes a brief resume of the main texts in the
Corpus Juris
and how they were applied by the jurists of the sixteenth and
seventeenth century will suffice.
The
condictio indebiti
was
dealt with under its own title in D 12.6 and C 4.5. According to D
12.6.1
"Et quidem, si guis indebitum
ignorans solvit, per hanc actionem condicere potest; sed sciens se
non debere solvit, cessat repetitio."
According to C 4.5. 1
"Pecuniae
indebiti, per errorem, non ex causa judicati
solutae, esse repetitionem, non
ambigatur."
18.
No distiction is drawn in these
texts between ignorance
or mistake of
fact and ignorance
or mistake of law but
according to D 22.6.9
"regula est, juris quidem
ignorantiam cuique nocere, facti vero ignorantiam non nocere."
And in C 1.18.10 it is explicitly
stated that
"cum quis jus ignorans,
indebitam pecuniam solverit: cessat repetitio ."
The fact that the texts dealing
specifically
with the
condictio indebiti
speak generally of "
ignorans"
or "
per errorem
"
and do not limit the remedy to cases
where payment was made as a result
of an error of fact
later became one of the arguments
in the debate. But
there were more material points of
difference arising
from other texts which were either
irreconcilable or sus-
ceptible to different
interpretations and from which an
almost random selection could be
made according to each
writer's personal preferences.
From the time of the Glos-
sators the jurists were never in
agreement on the effect '
19.
of
an error of law and after the reception of the Roman
law
in Western Europe two very distinct schools of thcught
developed.
On the one hand there were writers like
Cuja
-
cius
,
Donellus
,
Noodt
, and
Johannes Voet
who were of the opinion that the payment of an
indebitum
made in
errorem
iuris
was as a rule not recoverable. But there were
others
who took the opposite view. Among these were
Grotius
,
Vinnius
,
Huber
,
Van
Leeuwen
and
Van
der Keessel
.
(I
mention
only a
few of the better known writers; each side had many other supporters,
not only in Holland and the other Dutch
provinces,
but also in France and Germany. In France eg
Pothier
and
D'Aguesseau
entered the arena and in Germany
Carpzovius
,
Muhlenbruch
,
Brunnemann
and
Leyser
(and later
Gluck
,
Von Savigny
and
Windscheid
).
Amidst the
dissension in the ranks of the jurists the Dutch courts remained
unaccountably silent. Resear-chers have been able to find
only one
case (it is mentioned
20.
in
Pauw's
Observationes
Tumultuariae Novae No 1134) that is of some relevance although it is
of little assistance since only two of the judges
of the Hoge Raad
upheld the claim on the ground that "errorem juris, certe
moribus, non excludere indebiti condictionem".
(The majority
de-cided the case on other grounds.) It is difficult to un-derstand
why the words "certe moribus" were used
because more than a
hundred years later
Van der Keessel
still said (Praelectiones
3.30.6) by way of commentary on
De Groot's
Inleidinge 3.30.6:
"6. dwaalde of twyfelde aan't
recht. By die Romeinse Reg stel ek dit gewoonlik so dat die
condictio
indebiti
nie beskikbaar gestel word t.a.v. wat in regsdwaling
betaal is nie. Maar De Groot verkondig hier die teendeel,
vermoede-lik eerder
o.g.v. sy opvatting van die Romeinse Reg as van
sake wat by ons uitgewys of deur die hofgebruik goedgekeur is; want
Groenewegen het
ook in aant. 19 niks uit die reg van Hol-land
aangevoer om De Groot se leer te staaf nie, en tot steun van die
teenoorgestelde stand-punt
het hy niks anders aangevoer nie behalwe
fragmente uit die Corpus Juris en gesaghebben-de verklarings van
skrywers oor die Romeinse
Reg. En sover my wete strek, is daar deur
diegene
21.
wat die
gewysdes van Holland uiteengesit het, geen enkele beslissing van een
van die twee howe in die een of die ander rigting aangevoer
nie. En
vir sover ek weet, het Groenewegen in sy Tractatus de Legibus
Abrogatis by die wette wat die kwessie raak, niks aangemerk
i.v.m.
wat daar in die hedendaagse reg aan-gaande hierdie strydvraag
erkenning verkry of verdien het nie. Daarenteen getuig Van Leeuwen
i.v.m. ons hedendaagse reg dat die
condictio
indebiti
wel beskikbaar gestel word
t.a.v. wat in regsdwaling betaal is, terwyl hy hom veral op hierdie
passasie in De Groot beroep. Maar
Voet is van mening dat daar geen
rede be-staan waarom ons in die howe van die suiwerder standpunt van
die Romeinse Reg sou afwyk
nie waar dit die
condictio
nie toestaan nie; maar hy voer self ook niks uit die reg van Holland
tot steun van sy leer aan nie. In 'n
konsul-
tasie waar daar 'n treffende geval
i.v.m. 'n regsdwaling voorkom, staan ook 'n gesiene regs-geleerde op
grond van dieselfde dwaling
die geleentheid vir terugvordering voor,
hoewel
oo
k hy nie kans sien om hom op die
gebruik van die howe te beroep nie."
(The translation is that of
Gonin
et al.)
This is how the law in South
Africa stood
when the question came up for
decision in
Rooth v
The State
(
supra
)
before a court of three judges pre-
sided over by KOTZE CJ. Since we
have been urged
22.
not
to follow the court's judgment
I
am
obliged to
cite extensive portions thereof.
After mentioning the difference of
opinion
among the commentators, KOTZE CJ
proceeded as follows
(at 263-4):
Vinnius and D'Aguesseau have on
their side discussed the matter very fully, and their opinion is
chiefly based on conside-rations
of natural equity. They say that the
condictio indebiti
is founded
ex aequo et bono
, and no
one is allowed to enrich himself through the loss of another, which
would be the case if anyone who has paid in error of
law is not
allowed to reco-ver back what he has so unjustly paid. They also urge
that in the title de
condictione indebiti
no distinction is
drawn between mistake in law and mistake of fact. These arguments
appear to me sufficiently refuted by Voet, Gluck,
and Savigny, who
observe that where the
leges
are clear and specially lay down
as a well-recognised rule (or, as Windscheid puts it,
axiom
)
of law, that in case of er-
ror juris
the
condictio indebiti
does not lie (vid. cod.,1, 18, 10; Dijg. 22, 6, 9, pr.), there can be
no question of natural equity; and that although in the chapter
23.
de
condictione indebiti
no distinction is made between
error
juris
and
error facti
, it is plain that where this chapter
merely treats the subject in general it cannot im-pair the force of
other and later passages
in the
corpus juris
, where such
distinction
is
specially drawn D'Aguesseau also
strongly
relies on the
lex
7 and 3,
Dig
.
22, 6, where Papinian says: 'Ignorance of
the law is of no avail to those who seek
to
acquire (something); nor does it pre-judice those who seek their own
(
suum peten
-
tibus
)
.... but ignorance of the law never prejudices in averting a loss of
one's own.'
Now it is quite useless to
investigate whether the explanation of this passage
given
by Cujacius or that given by D'Agues-seau be the correct one, for
even if it be
granted that (as D'Aguesseau
wishes it) the words
suum petentibus
indicate that Papinian
was of opinion that
the
condictio indebiti
ought
to be allowed in case of a mistake in
law,
inasmuch as he who has unjustly paid
what
is not due seeks but to recover back
his
own, such opinion cannot prevail against
the
later and express language of the
lex
.
10,
cod
.
1, 18, where we read: 'Whenever anyone has in ignorance of the law
paid a
sum of money, the action to recover
it back
ceases; for you are aware that the
right
to
recover
back what has been unduly paid is only allowed by reason of a mistake
of fact,
and this (as Gluck has pointed
out) is sup-ported by the
lex
.
9,
Dig
.
22, 6, where
24.
Paulus says: 'It is indeed a rule
that ig-norance of the law prejudices, but not also ignorance of
fact.' (
Et vid. per Paulus
d. 1, 9, par. 5;
per Ulpian
,
1. 29 par 1, Dig. 17,2; per.
Papinian
1, 48; pr.
Dig
46.1.)"
Having thus rejected the view of
Vinnius
and
D'Aguesseau
and accepted
that propounded
inter alia
by
Voet
, KOTZE CJ proceeded as
follows (at 265):
"It
appears to me, however, that the jurists of our own time, regard
being had to these exceptions, are more or less inclined
to adopt a
middle view, and (as Gluck expres-ses it) discard the distinction
between mis-take of law and mistake of fact, and simply
consider if
the error, whether
juris
or
facti
,
be excusable (
verzeilich, entschuldbar
)
or
not. (Cf.
Thibaut
,
par. 29, and
Savigny
l.c.
note
(a) thereon;
Mackeldey
,
Lehrbuch
,
edit. 1862, pars. 165 and 467;
Goudsmit
,
par. 52; Modderman,par. 79;
Windscheid
par. 79a, and par. 426, n. 3.) Whether, accor-ding to the strict
interpretation of the Roman law, we are justified in adopting this
view of the modern school as correct, is a question upon which
I
need not enter; for even admitting the
correctness of that view, there exists no element of excusability in
the pre-sent case."
In the course of the discussion
which then follows of
25.
the "element of excusability"
the following was said
"
I
can discover no equity in favour of the
applicants, but rather the reverse; and here
I
wish to point out that the rule 'igno-rance
of law is no excuse,' and the disallow-ing of an action for the
recovery of that which
has been unduly paid, do not conflict with the
principles of the
aequum et bonum
,
and in suo-port of this reference may be made to what Story says in
his
Equity Jurisprudence
(par lll):'It is a well-known maxim that ignorance of the law will
not furnish an excuse for any person either for a breach or for
an
omission of duty;
ignorantia legis
neminem excusat
; and this maxim
is
equally as much respected in equity as in law......' "
In an article "Daedalus in
the supreme court -the common law today" published in Vol 49
(1986) T H R H R 127 at 136 prof
Visser
critisizedthe judgment
in
Rooth's
case on the following grounds:
"If the court in
Rooth v
The State
had adopted the historical method it might ob-viously
have been swayed by the fact that the view of those who bar the
condictio
if error of law is present, was essentially based on
an inappropriate application of the Aristotelian principle, an
application which
did not take account of the true basis of the
condictio
indebiti
. Had it further regarded only Roman-
26.
Dutch writers
as authoritive, it would have
found
(although the position in Roman-Dutch law is unclear as
well)
that the majority see it as no bar to the
condictio
.
"
These considerations, although
plainly relevant,
do not bring about that the
decision should not be followed.
The fact of the matter is that the
court was faced with a
situation where the Roman-Dutch
writers whom we usually
turn to for an exposition of the
law were not in agreement.
As VAN DEN HEEVER JA explained in
Tjollo Ateljees (Eins
)
Bpk v Small
1949(1) SA 856
(A) at 874, in such a
situation "we may choose to
rely upon those opinions
which appear to us to be more
comformable to reason"
(and,
I
would add, more in conformance with the law
and
requirements of our time). In
Rooth's
case the court,
probably as a matter of legal
policy, elected to follow
Voet
.
Moreover we cannot overlook the
fact that in
Benning's
case (supra) this court in effect
confirmed the
27.
decision albeit without specific reference thereto. Ad-mittedly the
court did not consider the question afresh -all that appears
in the
judgment is a terse statement that "there is ample authority for
holding that (ignorance of the law) by itself affords
no suffi-cient
ground for the claim". It nevertheless remains a decision of
this court which was acted upon in later cases such
as
Miller &
Others v Bellville Munici-
pality
1973(1) SA 914 (C) at 919
A-C and
Barker v Bent
-ley 1973(4) SA 204 (N) at 206 F-G. This
also applies, of course, to
Rooth v The State
which has stood
for more than a century and has also been consistently followed in
the provincial courts - although, in some cases,with
an obvious
measure of reluctance. In short we must face the fact that it has
generally come to be accepted that these two decisions
reflect the
current state of the law in this country (vid
De Vos
, op cit
at 182 and the cases cited there;
Joubert
, The Law of South
Africa Vol 9 p 50).
28.
On the
other hand we must bear in mind Lord
Tomlin's
famous words in
Pearl Assurance Company Limited v Government of
the Union
of South Africa
1934 AC 570
at 579
(which
were cited with approval eg in
Peldman (Pty)
Ltd v Mall
1945 AD 733
at 789 ) that the Roman-Dutch law is
" a
virile living system of law, ever seekinc,
as every
such system must, to adapt itself con-sistently with its inherent
basic principles to deal effectively with the increasing
complexi-ties of modern organised society: '
This being
the nature of our system the courts should not
hesitate
to adapt a principle which is found not to be
in line
with present-day developments in the particular
branch or
other branches of the law. As INNES CJ aptly
said in
Blower v Van Noorden
1909 TS 890
at 905:
"There
comes a time in the growth of every living system of law when old
practice and ancient for-mulae must be modified in order
to keep in
touch with the expansion of legal ideas, and to keep pace with the
requirements of changing conditions.
29.
And
it is for the courts to decide when the modi-
fications,
which time has proved to be
desirable,
are
of a nature to be effected by judicial de-cision, and when they are
so important or so ra-dical that they should be left to the
legisla-
ture."
It is with
this in mind that one has to look at the judg-
ment in
Rooth v The State
again.
What is
immediately apparent is that there is no
logic in
the distinction between mistakes of fact and mis-
takes of
law in the context of the
condictio indebiti
.This
condictio
has since Roman times always been regarded as a
remedy
ex
aequo et bono
to prevent one person being unjus-
tifiably
enriched at the expense of another. (Even those
favouring
the distinction concede that this is so.) Bearing
in mind
that the remedy lies in respect of the payment of
an
indebitum
(ie a payment,without any underlying civil or
natural
obligation) it is clear that, where such a payment
is made in
error, it matters not whether the error is one
of fact or
of law: in either case it remains the payment of
an
indebitum
and, if not repaid, the receiver remains
enriched.
30.
The nature of the error thus has
no bearing either on the
inde
-
bitum
or on the
enrichment. The same result is achieved when the
condictio
indebiti
is viewed (as it often is) as one of the
condictiones
sine causa
. Again it matters not whether the error is one of fact
or law for in both cases the payment is made
sine causa
(Cf
J
C Van der Walt
, "Die Condictio indebiti as verrykkingsaksie"
Vol 29 (1966) T H R H R 220 at 227).
It is equally plain that a strict
application of the distinction will often, if indeed not in the
majo-rity of cases, work an injustice
on the payer. Considered as a
matter of simple justice between man and man there is no conceivable
reason why the receiver of money
paid in error of fact should in the
eyes of the law be in a better position than one who has received
money paid in error of law.
It is not inappropriate to quote again
from INNES CJ's judgment in
Blower v Van Noorden
(
supra
)
at 900 where he indicated that "we should be slow to
31.
perpetuate a form of legal remedy which may work hard-ship, if it can
be modified so as to do away with that possibility".
The
inequity to the payer that the disallowance
of
the remedy in the case of an error of law may entail,
did
not sway the judges in
Rooth v The
State
. Their
reasoning appears from
the passage at 266 of the report
cited earlier and is to the
effect that the disallowance
of the remedy does not conflict with
the principles of
aequum et bonum
since the
ignorantia juris
rule also
applies in equity. The court
plainly regarded this rule
as the determining consideration
overriding all others;
this is why
Voet's
view was preferred to that of
De
Groot
and the latter's supporters.
(
Voet
actually
goes
the length of saying - in
12.6.7 of his commentary
- that "
to
penaliza the person who is ignorant of the
law
,
the law has denied every action, pers
ó
nal
suit or
right to reclaim
"
(
Gane
's
translation) ). What
32.
we must decide is whether an error
of law still deserves
this censure.
An important consideration in
seeking an answer to this question is that there is no evidence of a
gene-ral application of the
ignorantia juris
rule in South
Af-rican civil law. On the contrary there are many cases in which it
was not applied. The law relating to the renunciation
of rights is a
good example. As early as 1891 DE VILLIERS CJ said in
Watson v
Burchell
9 SC 2
at 5 that "no doctrine is better settled in
our law than that a person cannot be held to have renounced his legal
rights by
acquiescence unless it is clear that
he had ful
l
knowledge
of his rights and intended to part with them".
The reason is plain for, as DE VILLIERS J remarked in
Tighy v
Putter
1949(1.)SA 1087 (T) at 1095, rights cannot be renounced
unless the person concerned "knew what those rights were both in
fact
and in law". Save for a sómewhat discordant note
sounded in
Schwarzer v John Roderick's
33.
Motors
(Pty) Ltd
1940 OPD 170
at 185 this has always been
and still
is our law (
Laws v Rutherford
1924 AD 261
at
263;
Martin v De Kock
1948(2) SA 719 (A) at 733;
Fein
-
stein v
Niggli and Another
1981(2) SA 684 (A) at 698 F-G
where an
election to rescind or affirm an agreement re-
ceived
similar treatment).
Ignorance
of rights is often the ground on
which
restitutio
in
integrum
is granted. In
Stewart's
Assignee
v Nall's Trustee and Others
(1885) 3 SC 243
DE
VILLIERS CJ indicated on the authority of
Voet
4.6.9
that the
question in such a case is whether "a just cause
is alleged
in the declaration to exist" and added at 246:
"In
deciding this question, our Courts would not be bound by the strict
rules of the Civil Law, but would take for their guidance
the more
liberal principles which guided the Dutch courts."
After
citing this
dictum
Sir John KOTZE - who had by then
become the
Judge-President of the Eastern Districts Court
- said in
Umhlebi v Estate Umhlebi and Fina Umhlebi
1905
34. EDC
237
at 249:
" The
equitable spirit of our own Roman-Dutch
law, to a large extent due
to the influence
of the Canon law, is indeed one of its lead-
ing
features. Hence ignorance of one's right,
if it be a just and
probable ignorance, is a
good ground for restitution or relief
accor-
ding to the practice adopted in the Netherlands,
as
appears from an examination of the authori-
ties "
The effect
of the judgment was to release the widow Umhlebi
from a
renunciation of her right to half of her late hus-
band's
assets by virtue of their marriage in community- of
property
on grounds which were stated as follows at 248:
"Upon
every principle of law and equity the plain-tiff is entitled to the
relief which she asks. If we regard the case as one
of mutual
mistake, we find that both the plaintiff and her son Zachariah, at
the time of the application to the Supreme Court in
1892, were under
the impression that native law and custom applied to the land and
regulated the succession thereto. They were both
of them in ignorance
of the plaintiff's right arising from the marriage in community and
its effect upon the succession of the land."
These
pronouncements cleared the way for relief
35.
in a
number of subsequent cases where parties had acted
in
ignorance of their rights. A practice developed eg
whereby
parties to ante-nuptial contracts were allowed
to depart
from the terms of their agreements. It was
described
as follows in
Ex Parte Joannou et Uxor
1942
TPD 193
at
195-6:
" there
are numerous cases in which the
Court has
come to the assistance of applicants who have been mistaken or
ignorant as to the law. The practice in the Transvaal has
gone so far
as to assist applicants ignorant of the law in cases where there was
no agreement but the parties were under a wrong
impression of the law
and believed that community of proper-ty would be excluded, and
entered into the mar-
riage upon
that understanding Ignorance of
one's
right, if it be a just and probable igno-rance is a good ground for
the relief according to our. law, see
Umhlebi v Estate Umhlebi
(19 E.D.C. 237).
"
Another
area of the law that developed along similar lines
involves
the exercise by an heir of his right to adiate
or to
repudiate the terms of a will. One case deserving
special
mention is
Van Nyk v Van Wyk's Estate
1943 OPD
36.
117
concernïng a widow who had performed acts whïch could
be
coostrued as tantamount to adiating under a joint will
in the
mistaken belief that she was irrevocably bound by
its terms.
At 126 of the report PISCHER JP said:
"However
that may be,
I
think
it must be accep-
ted that the Courts of
South Africa have regar-
ded it as a natural
extension of the rule of ecuity that the strict rule of law - that
ig-norance of law afford? no excuse - is not
or m
ay
not be applicable to a case where the fact
in
issue is whether an election has been made
or
not."
Relying
inter alia
on this
dictum
relief was grantad in
Ex
Parte Estate Van Rensburq
1965(3) SA 251 (c) to an
heir who
had repudiated a will in ignorance of the legal
consecuences
of his act.
All the
cases referred to thus far related to ignorance
of
the parties' rights - their so-called private rights.
I
mention
this because there is a reference in sccne of the cases
(eg in
Putter v Tighy,supra
) to the decision of the House of
Lords in
Cooper v Phibbs
(1867) LR 2 HL 149
to the effect that the
37.
ignorantia
juris
rule has no applicatión to private rights.
In
Putter
's case at 1102 ROPER J said:
"The
rule that a man cannot be held to waive rights of
which he
is ignorant dces not in my view ap-ply where the ignorance relied
upon is simple igno ance of a rule of law; in such a case
the maxim
errorem juris cuique nocere
is applicable. It arises when
owing to mistake or ignorance of law the party is unaware of his
rights."
Only
Cooper v Phibbs
and other English authorities are
cited to
support this proposition. With respect,
I
am unable to follow ROPER J's reasoning and
particu-
larly the
distinction between "simple ignorance of a
rule of
law" and ignorance of one's rights "owing to
mistake or
ignorance of law". The learned judge ack-
nowledged
at 1103 that "in a sense almost any mis-
take as
to, or ignorance of,a rule of law involves mis-
take
orignorance of private rights...." The converse
is also
true: a mistake of law as to a private right
is hardly
conceivable except in the context of amistake
as to, or
ignorance of, a general rule of law. In the
38.
cases referred to (and many others that
I
did not mention)
the
parties' ignorance of their rights stemmed from their ignorance of
the general law. These cases are thus a clear indication that
the
ignorantia juris
rule has for quite a considerable period of
time not been of general application in South African civil law.
Bearing in
mind that,since this court's deci-
sion
in
S v De Blom
1977(3) SA 513, ignorance of the law
may
even provide an excuse for otherwise criminal behaviour,
we
have to ask ourselves whether there is any reason for
retaining
the age old distinction
between errors of
law and
fact in claims for the repayment of
money unduly paid in error.
I
can
conceive of none. In the sixth (1957) edition of
Gar
-
diner
& Lansdown's
South African Criminal
Law and Pro-cedure Vol 1 at 60 it is stated that "if ignorance
of law were generally admitted as a valid
ground of excuse for
unlawful conduct, the administration of law would become
impracticable". But the administration of law
suffered
39. no ill effects as a result of
the decision in
De Blom's
case; and it cannot seriously be
suggested that it would
if the distinction between errors
of law and fact were
to be abolished for purposes of
the
condictio indebiti
which affects no one but the payer
and payee. Nor can
legal policy stand in the way of
its abolition; on the
contrary, legal policy would seem
to demand rather than
preclude the abolition of a
principle that is manifestly
unjust in the majority of cases.
Taking account fur-
ther of the complexities of
contemporary legal "and com-
mercial practices which differ
toto cae
lo from those fol-
lowed in
earlier times,
I
would
accordingly rule that the
fact that money was unduly paid in
error of law is not by
itself a bar to its recovery by
way of the
condictio in
-
debiti
.
It does not follow, however, that
any error of
law would be sufficient ground for
a succesful condiction.
In
Rahim v Minister of Justice
1964(4) SA 630 this court
40. held that an amount of money
paid
indebite
in mistake of fact could not be recovered by
means of the
condictio in
-
debiti where the conduct of the
payer was found to have been "inexcusably slack" (635 E-F).
As appears from 634 A-C of the
report the court adopted the view of
Gluck and Leyser that, to guote Leyser,
crassus et inexcusabilis
er
-
ror condictionem indebiti impedit
; and
Voet's
statement that "the ignorance of fact should appear to be
neither slack nor studied (
nec supina nec affectata
)",which
was approved of in
Union Government v National Bank of South
Africa Ltd
1921 AD 121
at 126. (See also
Miller & Others v
Bellville Municipalit
y
supra
at 919 F-G;
Rulten NO v
Herald Industries (Pty) Ltd
1982(3) SA 600 (D & CDL) at
607 C-E.) Mistakes of law should
be treated in similar fashion so that the assimilation between the
two kinds of error be complete.
Accordingly in my judgment our law
is to be adap-ted in such a manner as to allow no distinction to be
41. drawn in the application of
the
condictio indebiti
be-tween mistake in law (
error
juris
) and mistake of fact (
error facti
). It follows that
an
indebitum
paid as a result of a mistake of law may be
recovered provided that the mistake is found to be excusable in the
circumstances of
the particular case.
I
am
not unmindful of the criticism against such an approach
inter
alia
by prof
Visser
;
nor of the fact that the retention of an element of excusability will
not entire-ly rid the
condictio indebiti
of its illogical character. But the
historic
nature of the remedy as one granted ex'ae-
quo
et
bono
should be preserved and care should be taken to avoid it being turned
into a tool of injustice to the receiver of money paid
indebite
.
As TINDALL J (as he then was) warned in
Trahair
v Webb & Co
1924 WLD 227
at 235
"where the plaintiff bases his claim
for relief on an equit-
able doctrine the
Court must be careful that, in a desire to do justice to the
plaintiff, an injustice is not done
42.
to
the
defendant".
It is not
possible nor would it be prudent to define the circumstances in which
an error of law can be said to be excusable or, conversely,
to supply
a compen-dium of instances where it is not. All that need be said is
that if the payer's conduct is so slack that he does
not in the
court's view deserve the protection of the law he should, as a matter
of policy, not receive it. There can obviously be
no rules of thumb;
conduct regarded as
inexcusably
slack in one case need not necessarily
be
so re-
garded
in
others,and
vice
versa
.
Much will depend
on
the re-
lationship
between the
parties;
on the conduct of the defen-
dant
who
may
or
may
not have been aware that there was no
debi
-
tum
and whose conduct may or may not have contributed to the
plaintiff's
decision to pay; and on the plaintiff's state of mind and the
culpability of his ignorance in making the
payment.
(Consider eg the case of a person who, whilst in doubt as to whether
money is legally due,
pays
it
not
caring
43.
whether it is and without
bothering to find out.) These are only a few considerations that come
to mind; others will no doubt manifest
themselves with the passage of
time as claims for the recovery of money paid in error of law come
before the courts.
There is also
the question of the onus of proof.
In
Recsey v Reiche
1927 AD 554
at 556 it was said that the onus in an action based on
the
condictio indebiti
"lies throughout the whole case" on the plaintiff. This
remark was obviously intended to refer to every element constitu-ting
the plaintiff's cause of action. This includes the excusability of
the error. As was pointed out in
Mabaso
v Felix
1981(3) SA 865 (A) at 872 H considerations of policy,
practice
and fairness
inter partes
largely determine the in-
cidence of the
onus in civil cases; and
I
can
conceive of nothing unfair in,and of no consideration of policy or
prac-tice militating against, expecting of a plaintiff who
alleges
that he paid an amount of money in mistake of law to prove
44.
sufficient facts to justify a finding that his error is excusable.
The rule otherwise would in the majo-rity of cases require
the
defendant to produce proof of matters of which he has not the
slightest knowledge (Ma-
baso v Felix
at 873 D-E).
What
finally remains to be examined is the ex-cusability of the error in
the present case.
The
information presented to the trial court about the circumstances in
which the tax had been paid
took the
form of a statement of agreed facts and the evi-dence of a single
witness called by the appellant - Mr C F H Vaux, the financial
manager of Robert Enthoven from 1980 to 1934. Mr Vaux's evidence is
to the effect that when he assumed duty with the company he found
in
its files a circular (Exh A) issued by the office of the re-gistrar
of insurance. Exh A is dated Xovember 1972 and bears the heading
"Requirements to be complied with by
45. agents
for brokers at Lloyds". It contains certain ad-ministrative
directives and the following information about "taxation".
"4.
Taxation
(a)
A tax equal to 2
½
% of premiums paid
on
policies effected through the licen-cee's agency is payable annually.
The tax is payable
before the end of Febru
-
ary
each
year on premiums
paid
during the preceding calendar year in
respect of -
(i)
Business (including reinsurance
business)
placed with underwriters at Lloyds's under section 60(1) of
the
Insurance Act, and
(ii)
business placed outside the Lloyds's market, with the Registrar's
approval, in terms of section 60(2) of the In-surance Act.
"
Because he
found the provisions of the Act to be
unclear
Vaux at one stage telephoned the registrar's office
and
enquired whether the tax was indeed payable on other
business.
As far as he could recollect he spoke to an
assistant
registrar who referred him to Exh A. He could
46.
not
remember whether he consulted the company's attorneys.
He
continued paying the tax since he was "reasonably satis-
fied"
that it was payable "after having cleared the matter
up with
the registrar". It was apparently only after
the merger
of the two companies that the matter received
further
attention.
In the
statement of agreed facts the parties
agreed
that the two companies paid a total amount of
R179
607,60 to first respondent as they "believed
in
the
circumstances
(they were) obliged to in terns of section 60(1)(f) of the Act, in
respect of section 60(2) business
carried on
by (them) for the calendar years 1984 and 1985
respectively".
In a supplementary agreement they recor-
ded the
following:
"The
parties are in agreement that since Section 60 of Act 27 of 1943 was
amended in 1966 the De-fendants consistently took the
attitude that
busi-ness in terms of Section 60(2) attracts tax in terms of Section
60(1)(f), and brokers registered to do business
in terms of Section
60(1) accepted
47.
this and paid the tax until
approximately 1986 when it was for the first time disputed that such
tax is payable by various brokers
in South Africa, including the
Plaintiff, which brokers either refuse to pay the tax or pay it under
pro-test. Other brokers still
pay the tax without protest."
I
have
no doubt that the error on Robert Entho-
ven's part was excusable. The
company was faced with
Exh A. Initially the directives
therein were followed
and when Vaux questioned their
validity he was assured
that the tax was indeed payable.
He cannot be blamed
for turning to, or for accepting
the ruling of, the of-
ficial to whom the administration
of the Act has been
entrusted and to whom members of
the public would natu-
rally turn for guidance. As Vaux
said in his evidence
he accepted the registrar's view
as the most authorita-
tive. It was not a view that could
be dismissed as
patently wrong; respondent's
counsel supported it with
confidence and great conviction
even in this court. More-
over the registrar's view was not
only shared by the
48. Receiver of Revenue, but
accepted and acted upon without demur for many years by every broker
registered to do Lloyds' business.
Bearing in mind that failure to
pay the tax carries a criminal sanction it comes as no sur-prise that
Robert Enthoven followed suit.
ït is idle to suggest that it
could and should have been paid under pro-test - an expedient usually
resorted to when a person
is confronted with a demand for money that
he believes not to be due. This is not what Vaux believed.
Willis Faber's position is not as
clear since there is no direct evidence of the circumstances in which
it paid the tax. We know from
the statement of agreed facts that the
company paid it in the belief that it was legally obliged to do so
but, apart from such inferences
as may be drawn from the common cause
or proved facts, there is no information on which the excusability of
the error can be determined.
There is no evidence disclosing the
source of the error for, even assuming that the company
49. received Ex
A, it cannot be inferred as a matter of pro-bability that it was
this directive that engendered the belief that the
tax was payable. Nor is there evidence of any enquiries made or other
steps taken
to explore the position and ascertain the extent of the
company's liabi-lity. In short, how the belief came to be entertained
and
what steps were taken to verify it
are
simply not known. In my view there is insufficient
information to justify a finding that the mistake is excusable.
Thë result is that the
appellant is entitled to recover the amount unduly paid by Robert
Enthoven only - R165 278,00 according
to the statement of agreed
facts. The appeal is accordingly upheld with costs in-cluding the
costs of two counsel. The order of the
court
a quo
is set
aside. Substitutéd for it is the following order:
"Judgment is granted in
favour of the plaintiff for
50.
payment of an amount of R165
278,00;
interest
a tempore morae
on the amount of R165 278,00 at the rate of 12% per annum;
(3) costs of suit including the
costs of two
counsel."
J J F HEFER JA.
JOUBERT JA ) NIENABER JA ) CONCUR.
KRIEGLER AJA )
CASE NUMBER: 71/90
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between:
WILLIS FABER ENTHOVEN (EDMS)
BPK
Appellant
and
RECEIVER OF REVENUE
First
Respondent
THE REGISTRAR OF
INSURANCE
Second Respondent
CORAM
: JOUBERT, HEFER,
NIENABER, VAN DEN HEEVER JJA et KRIEGLER AJA
HEARD ON
: 6 SEPTEMBER 1991
DELIVERED ON
: 26 NOVEMBER
1991
JUDGMENT VAN DEN HEEVER JA
2
I
respectfully
agree with the conclusions of law arrived at by Hefer JA and that the
claim based on payments by Willis Faber should
fail.
I,
equally respectfully, disagree with the
finding that Robert
Enthoven's error was
shown to have been excusable.
We are not dealing with a
situation where the mistake relied on is one affecting only the
rights of individual immediate parties to
a relationship. What is in
issue is the interpretation of a statute. One of the parties is the
state, not in a one-to-one - say,
for example, contractual -
relationship with appellant, but the state in its more customary
authoritarian guise applying a general
law. The matter accordingly
has a far more general dimension and affects both the state itself
and large numbers of others who arrange
or have arranged their
affairs on a certain view of that law.
The citizen in his relationship
with the state, though no longer expected to be legally omniscient,
has a
3
duty
to acquaint himself with the various laws or
regulations
applicable to the particular occupation in
which
he engages (per Friedman J in
S
v SAYED
1981 (1) SA
982
(C) at 990).
Although
the test applied in the criminal law
in
assessing the culpability of a citizen's ignorance has refinements
not relevant to the present matter, the cases
following
on
R v DE BLOM
1977 (3) SA 513
(A) are
instructive. The
duty to take reasonable steps to
discover
the law is a real one. Mere casual enquiry will
not
suffice to excuse ignorance. (Cf
S v
LEHMBECKERS
TRANSPORT (EDMS) BPK EN
'n ANDER
1989 (2) SA 53
(A).) The
interests of the community as a whole
require there to be
certainty as to the
law.
I
can think
of no reason why
the citizen should have a
more onerous duty when his
liberty is at
stake than when it is merely his money that
matters.
In my view
telephonic enquiry from an unnamed
4
assistant
registrar who referred Mr Vaux back to the 1972 circular, did not
discharge appellant's duty where Mr Vaux was aware of
the ambiguity
in the Act and that the circular "was in my opinion not quite
what the Act said". What, in all honesty, could
any agent expect
an official administering the law to say, other than that his view,
shared and applied by his colleagues and predecessors
for decades, is
the correct one? To my mind the reasoning adopted in
MILLER AND
OTHERS v BELLVILLE MUNICIPALITY
1973 (1) SA 914
(C) at 919 H is
realistic.
Nor does
the fact recorded in the supplementary agreement, that brokers
accepted the state's view for many years, take the matter
any
further. In the first instance we do not know why this was so. Was it
easier and cheaper to pay up and shut up than to challenge
that view
- particularly since failure to pay might result in a criminal
sanction? In any event the fact recorded in that supplementary
agreement cannot assist appellant
5
where it did not inf luence Vaux
and through him the
company:
"I
think
I
did think about
contacting other agents, but
I
do
not think
I
ever
got round to it. After speaking to the Registrar" - it should of
course be "an assistant registrar" -"to
me that was
good enough.
Q: So you would
not know what the attitude of the other agents would have been during
the
same time? -
I
do not know,
I
have no idea."
I
would
dismiss the appeal with costs.
L VAN DEN HEEVER JA