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[1993] ZASCA 34
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Birch v Klein Karoo Agricultural Co-Operative Ltd. (552/91) [1993] ZASCA 34; 1993 (3) SA 403 (AD); [1993] 2 All SA 166 (A) (19 March 1993)
1
Case No 552/91 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
Between
SIDNEY BONNEN BIRCH
Appellant
- and -
KLEIN KAROO AGRICULTURAL
CO-OPERATIVE LIMITED
Respondent
CORAM:
HOEXTER, VIVIER, GOLDSTONE JJA
et NICHOLAS, VAN COLLER AJJA.
HEARD:
8 March 1993
DELIVERED:
19 March 1993.
JUDGMENT
VIVIER JA/
2
VIVIER JA.
The appellant is an ostrich farmer in the Grahamstown
district. The respondent is a co-
operative society incorporated under the provisions of the Co-operatives Act
91 of 1981 ("the 1981 Act"). The respondent, which is
based in Oudtshoorn, has
as one of its objects the disposal of ostriches and ostrich products. At the
request of the respondent,
the Minister of Agriculture, acting under and by
virtue of the powers conferred upon him by sec 241(3) (b) of the 1981 Act, by
Government
Notice No R981 published in the Government Gazette of 17 May 1988
declared that from that date no producer of ostriches or ostrich
products in the
Republic of South Africa would be allowed to sell or otherwise dispose of any
ostriches or ostrich products otherwise
than through the respondent. In terms of
the notice "ostrich products" were defined to mean anything derived from
ostriches,
3
whether processed or not, but not ostrich egg-shells.
Specifically
excluded from Government Notice No R981
were, firstly, the sale or disposal
of ostriches and ostrich eggs by a producer to any producer in a specified
exempted area and,
secondly, the sale or disposal of ostrich products by a
producer if those ostrich products had already been sold or otherwise disposed
of once in any form whatsoever through the respondent.
The appellant thereafter applied on notice of motion to the Cape Provincial
Division for an order declaring Government Notice No R981
to be invalid on the
ground that by issuing the notice the Minister had exceeded his powers under the
enabling legislation. The application
was opposed by the respondent. The matter
came before MARAIS J who dismissed the application with costs but granted leave
to the
appellant to appeal to this Court.
Sec 241 of the 1981 Act, pursuant to which
4
Government Notice No R981 was issued, does not
itself
contain any enabling provision conferring upon the
Minister a power
similar to that which had previously
been vested in him by sec 102(1) of the
Co-operative
Societies Act 29 of 1939 ("the 1939 Act") which was
repealed
by the 1981 Act. Sub-sec 241(3) (a) of
the 1981 Act provides, however, that
any notice or
proclamation issued or deemed to have been issued
under sec
102 of the 1939 Act and which was in force
immediately before the
commencement of the 1981 Act
shall, the repeal of such section
notwithstanding,
continue in force until it is withdrawn by the
Minister
under paragraph (b) of that subsection. In terms of
paragraph (b)
the Minister may amend, substitute or
withdraw any notice or proclamation
issued or deemed to
be issued under sec 102 of the 1939 Act. By
Government
Notice No R981 previous Government Notices
Nos 640 of 9 May 1958, 1166 of 31
July 1959 and 875 of
5
5 June 1970 were repealed and new provisions were substituted. The question
whether the Minister was empowered to issue Government
Notice No R981
accordingly turns on a proper construction of sec 102(1) of the 1939 Act.
That Act repealed and superseded all existing legislation governing
co-operative societies and companies. Under the Co-operative Societies
Act 28 of
1922 ("the 1922 Act") there had been no form of compulsion. A farmer was free to
join a co-operative society or company
as he pleased and only those who had
voluntarily become members of a society or company were bound by the regulations
thereof. Non-members
were free to dispose of their agricultural products or
manufacture them into the finished product as they pleased (Orient Tobacco
Co
Ltd v Ko-operatiewe Tabakplanters-vereniging
1927 AD 49
at 54). In 1925 the 1922
Act was amended by Act 38 of 1925 ("the 1925
6
Act") and in terms of sec 17(1) thereof, as
subsequently amended by sec 10(a) of Act 2 of 1930, the
Minister of
Agriculture was for the first time
empowered to compel each producer of a particular kind
of agricultural produce in a particular district, area
or province to sell his produce through a particular
co-operative agricultural society or company registered
under the principal Act irrespective of whether the
producer in question was a member of that society or
company.
The powers conferred upon the Minister by sec
102(1) of the 1939 Act broadly resembled those which
the repealed sec 17 (1) of the 1925 Act had previously
conferred upon him. Sec 102 (1) of the 1939 Act
provided as follows :-
"102(1) Whenever the Minister is satisfied -
(a) that at least seventy-five per cent of the number of the Europeans who
in any area
produce any kind of
7
agricultural produce are members of a co-operative agricultural society or
company which is registered under this Act and has as one
of its objects the
disposal of that kind of agricultural produce; and (b) that the members of that
society or company produce at
least seventy-five per cent of the total quantity
of that kind of agricultural produce produced by Europeans in that area, he may,
at the request of that society or company, by notice in the Gazette declare
that, from a date to be stated in the notice, no producer
of that kind of
agricultural produce
in that area
, which shall be defined in the notice,
shall sell or otherwise dispose of such produce produced by him in that area
otherwise than
through the said society or company, whether he is a member
thereof or not; and any producer who, after the date so fixed, sells
or
otherwise disposes of any such produce otherwise than through the said society
or company, and any person
8
who, after such date buys or otherwise acquires such produce from any such
producer otherwise than through the said society or company,
shall be guilty of
an offence and liable on conviction to a fine not exceeding one hundred pounds."
(my emphasis)
It will be seen that whereas the 1925 Act had authorised the Minister to
impose the restriction in "any district, area or province"
the words "district"
and "province" no longer appeared in the 1939 Act and the Minister's power
related simply to "any area", which
it was for the Minister to define. In terms
of the 1939 provision the Minister of the day issued the aforesaid Government
Notices
Nos 640 of 9 May 1958 and 1166 of 31 July 1959 (both of which declared
the Union of South Africa to be an area in which the restrictions
therein set
out were to apply) and Government Notice No 875 of 1970, which declared the
9
Republic of South Africa to be such area. By Government Notice No R981 the
Minister likewise sought to impose a country-wide prohibition.
This, the
appellant contends, the Minister was not empowered to do.
The case turns upon the meaning of the words "any area" in sec 102(1) of the
1939 Act and particularly whether they may encompass
the whole of the Republic
of South Africa .
It is a well-established principle of construction that in construing a
statutory provision the object should be to ascertain from
the language used the
intention which the Legislature meant to express. In ascertaining this
intention, regard is to be had both
to the language of the enactment and to the
context, using this word in a wide sense. See Ebrahim v Minister of the Interior
1977(1)
SA 665 (A) at 677-8 and the authorities there cited; Protective Mining
and
10
Industrial Equipment Systems (Pty) Ltd (Formerly Hampo
Systems (Pty) Ltd)
v Audiolens (Cape) (Pty) Ltd 1987(2)
SA 961 (A) at 991 F-H and Summit
Industrial Corporation
v Claimants against the Fund Comprising the Proceeds
of
the Sale of The M V Jade Transporter 1987(2) SA 583 (A)
at 596 G - 597
B. However, where the language of a
statute is unambiguous, and its meaning is clear, the
Court may only depart from such meaning if it
"would lead to absurdity so glaring that it could never have been
contemplated by the legislature, or where it would lead to a result
contrary to
the intention of the legislature, as shown by the context or by such other
considerations as the Court is justified in
taking into account". (per INNES CJ
in Venter v Rex
1907 TS 910
at 915; Shenker v The Master and Another
1936 AD 136
at 142).
According to its ordinary, literal and grammatical sense the word "area"
means a piece of ground or any particular surface or region
or
11
territory. (cf Black's Law Dictionary, 5th ed; Oxford English
Dictionary, 2nd ed; and Webster's Third New International Dictionary
sv "area").
An "area" may therefore be of any size or extent. The fact that areas differ in
extent, such as the different areas of
different spaces, surfaces or regions,
does not affect the clear ordinary meaning of the word. Uncertainty as to the
extent of the
area must not be confused with uncertainty as to the meaning of
the word. The permissible extent of an "area" in any particular statutory
enactment will depend on whether the Legislature has expressly or by implication
placed a limitation on such extent. In the present
case there is no limitation,
express or implied, in sec 102(1) of the 1939 Act upon the size of the area
which the Minister may specify
in the notice which he issues under that section.
The words "any area" in sec 102(1) may therefore encompass the entire
country.
12
In R v Sachs 1953(1) SA 392 (A) this Court held that,
depending upon the
context in which the word "area" is used, it may embrace the whole country. The
appellant in that case had been
convicted of contravening sec 11(h) read with
sec 9 of the Suppression of Communism Act 44 of 1950, in that he had attended a
meeting
in contravention of a notice served upon him by the Minister. The
validity of the notice was attacked on the ground, inter alia,
that whereas sec
9 of the Act authorised the Minister to prohibit a person from attending any
gathering in any place "within an area"
specified in the notice, the Minister
prohibited the appellant from attending any gathering within the then Union of
South Africa
and the then Territory of South West Africa. It was contended that
this large stretch of country was not an "area" within the meaning
of sec 9, and
reliance was placed on the meaning of the word "area" in sec 10 of the Act.
Centlivres CJ said at
13
403 H - 404 A
"I cannot agree with this contention. Secs 9 and 10 are entirely distinct and
separate. While the word 'area' in sec 10 may, by necessary
implication from the
context in which it is used, have to be construed as an area less than the Union
and South West Africa there
is no such implication in sec 9. That section
contains no limitation, express or implied, upon the size of the area which the
Minister
may specify in the notice which he issues under that section. The fact
that he has specified the largest area which he could specify
under the section
does not, in my opinion, invalidate the notice".
The
provisions of sec 102(1) of the 1939 Act are, as was pointed out by counsel for
the appellant, of a far-reaching and drastic nature.
All producers of
agricultural produce are made subject to ministerial control and may be deprived
of the right to sell their produce
to buyers of their own choice. In Orient
Tobacco Company Ltd v Ko-operatiewe Tabakplanters-vereniging, supra at 54 DE
VILLIERS JA
described the
14
power conferred upon the Minister by sec 17 of the
1925 Act as
"certainly of an extraordinary character and fraught with the gravest
consequences to individual producers".
That case
turned upon the meaning of the words "each
producer of that kind of produce" in sec 17 of the 1925
Act. This Court held, at p 56, that the words were
unambiguous and quite general and that although the
position created for the appellant was one of great
hardship, the Court had no option but to give full
effect to them. So too, in R v Sachs, supra,
CENTLIVRES CJ said at 400 F-G :
"But the mere fact that autocratic powers are conferred by the section on the
Minister does not mean that the section is ambiguous.
In my opinion it is clear
that Parliament intended to confer autocratic powers upon the Minister and it is
the duty of courts of
law to give effect to the intention of Parliament."
In my view the same applies to the present
15
case. The words "any area" are unambiguous and plainly so wide
in import that it is clear that the Legislature was intent upon conferring
coercive powers upon the Minister to issue a notice in respect of the total area
of the Republic of South Africa, despite the hardship
the exercise of such
powers might create for individual producers. The Court has no option but to
give full effect to such intention.
Counsel for the appellant sought to interpret . the words "any area" by
reference to the language of sec 17(1) of the 1925 Act, particularly
the use of
the word "area" in conjunction with the words "district" and "province" in that
subsection. He contended that a comparison
of sec 17(1) with sec 102(1) of the
1939 Act indicated that the expression "any area" in the latter Act was intended
to bear the
same restricted meaning it had borne in the context of the 1925
provision. This Court has laid down that once the
16
meaning of a statutory provision is found to be clear and unambiguous it is
not permissible to have recourse to pre-existing legislation
for the purpose of
construing the statutory provision. See Collie, NO v The Master 1972(3) SA 623
(A) at 629 F - 630 B and Ebrahim
v Minister of the Interior, supra at 680 B-C.
But even regard to the pre-existing legislation would not detract from the clear
meaning
of the words "any area" in the 1939 Act, but tends to confirm it. In my
view the change in context by the omission of the words of
limited import in the
subsequent statute signifies an intention to use the words "any area" in their
unrestricted sense as not only
encompassing the terms "district" and "province"
hitherto used but indeed the entire country. (cf Westinghouse Brake and
Equipment
(Pty) Ltd v Bilger Engineering (Pty) Ltd 1986(2) SA 555(A) at 561
H).
The 1939 Act must accordingly be construed as
17
having empowered the Minister to issue a notice which could apply to the
entire country. It follows that notice R981 cannot be said
to have been ultra
vires.
In the result the appeal is dismissed with costs, such costs to include the
costs occasioned by
the employment of two counsel.
W. VIVIER JA.
HOEXTER JA) GOLDSTONE JA)
NICHOLAS AJA) Concur.
VAN COLLER AJA)