About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1999
>>
[1999] ZASCA 40
|
|
Unitrans Passenger (Pty) Ltd t/a Greyhound Coach Lines v Chairman of the National Transport Commission and Others, Transnet Ltd (autonet Division) v Chairman of the National Transport Commission and Others (403/97,415/97) [1999] ZASCA 40; [1999] 3 All SA 365 (A); 1999 (4) SA 1 (SCA) (28 May 1999)
REPORTABLE
IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
CASE
NO : 403 / 97
In
the matter between
UNITRANS
PASSENGER (PTY) LTD
t/a
GREYHOUND COACH LINES
Appellant
and
THE
CHAIRMAN OF THE NATIONAL
TRANSPORT
COMMISSION
First respondent
THE
NATIONAL TRANSPORT COMMISSION Second
respondent
INTERKAAP
FERREIRA BUSDIENS
Third respondent
TRANSNET
LTD (AUTONET DIVISION)
Fourth respondent
CASE
NO : 415 / 97
And
in the matter between
TRANSNET
LTD (AUTONET DIVISION)
Appellant
and
THE
CHAIRMAN OF THE NATIONAL
TRANSPORT
COMMISSION
First
Respondent
INTERKAAP
FERREIRA BUSDIENS (EDMS) BPK Second Respondent
GREYHOUND
COACH LINES (PTY) LTD
Third Respondent
BROADWAY
BUS SERVICES (PTY) LTD
Fourth Respondent
CORAM
Hefer, Howie, Marais, Olivier JJA,
Madlanga
AJA
DATE
OF HEARING
10
May
1999
DATE OF
JUDGMENT
28 May 1999
Legislation
amending the process of obtaining a road carrier permit by
terminating the authority of the National Transport Commission
to
adjudicate domestic applications in terms of the Road Transportation
Act 74 of 1977 not applicable to applications pending on
date on
which amendment took effect. An application is pending when
prescribed forms etc. lodged with secretariat of Commission.
_________________________________________________________
JUDGMENT
_________________________________________________________
OLIVIER JA
OLIVIER
JA
:
[1] The
main question to be decided in the appeals before us is whether or
not a pending application for a road carrier permit
is affected by
the introduction of legislation amending the application process;
and, secondly, whether there was a pending application
in the matter
now before us.
[2] Before
1 May 1996 the National Transport Commission (“NTC”) and
the Local Road Transportation Boards had concurrent
jurisdiction to
award certain road carrier permits. An applicant for a permit could
choose to apply to the NTC or to a Board.
On 1 May 1996
Proclamation R22 altered this position in the following relevant
ways :
1 The
NTC was divested of its jurisdiction to award the class of permit
relevant to this case.
2 The
NTC was no longer empowered to refer an application to a Board.
3 Only
Boards could award the relevant permit.
4 All
provisions for the transfer of pending applications for the relevant
permits from the NTC to Boards were repealed.
The
Proclamation omitted any mention whether the NTC retained
jurisdiction over applications lodged with it before 1 May 1996
but
not finalised by that date. This, succinctly, became the
fundamental issue in both appeals : can an application submitted
to
the NTC before 1 May 1996 be proceeded with before that tribunal, or
has it become a dead letter?
THE
GREYHOUND APPEAL
(CASE NUMBER 403 / 97)
[3] On
18 March 1996 the third respondent, Interkaap, lodged an application
with the NTC in terms of sec 12 of the Road Transportation
Act 74 of
1977 (“the Act”) for a public road carrier permit.
On
3 May 1996, purporting to act in terms of Section 14(1) of the Act,
the NTC published Interkaap’s application in Government
Gazette No. 17124 of the same date.
[4] The
relevant portion of Section 13(1) of the Act before and after the
promulgation
of Proclamation R22 reads as follows :
(1) Subject
to the provisions of this Act, the commission
or
a board
shall
receive and consider any application
for
the grant, renewal, amendment or transfer of a
public
road carrier permit ...
(own emphasis).
The
relevant portion of Section 14(1) of the Act before and after 1 May
1996
reads as follows :
(1) The
commission
or a board -
(a)
shall,
before considering any application for the
grant
,
amendment (other than an amendment
referred
to in paragraph (b) for transfer of a
public
permit); ...
publish
in the Gazette such
particulars
of the application as may be
prescribed
by Regulation
.
(own
emphasis)
.
[5] On
23 May 1996, as it was entitled to do in terms of Section 14(2) of
the Act, Greyhound submitted written objections in accordance
with
the Regulations. The grounds of objection dealt with the merits
only.
[6] On
11 October 1996, Greyhound received a notice of set down from the
NTC for a hearing of Interkaap’s application on
29 October
1996. On that date, Greyhound and Transnet applied for
postponements without success. Nevertheless the hearing of
the
matter on its merits was postponed to 15 November 1996, when
Greyhound was represented and objected to the grant of the permit.
At the conclusion of the argument on the merits, the NTC deferred
its decision. Subsequent to this date, apparently on 29
November
1996, Greyhound received legal advice to the effect that, by virtue
of the provisions of Proclamation R22, the NTC
could not proceed
with the adjudication of Interkaap’s application. By 3
December 1996 Greyhound’s representative
learned that the NTC
would make known its decision, apparently in favour of Interkaap, on
5 December 1996.
[7] On
5 December 1996, Greyhound and another party, Broadway - not a
party to this appeal - brought an urgent application
against the
NTC ,
inter
alia
,
to interdict it from dealing further with the matter, and more
particularly making its decision known or acting on it. The
basis
of the application was the averment that, by virtue of Proclamation
R22, the NTC was divested of its powers to hear and
decide
applications for the relevant transport permits. At the same time a
review application, based on the same legal contention,
was launched
by Greyhound. Its aim was to set aside the proceedings of the NTC
in the Interkaap application.
[8]
Pending
the outcome of the two applications mentioned above, the NTC was
interdicted from proceeding with the Interkaap application
or from
giving a decision on it.
[9] The
review application brought by Greyhound giving rise to the present
appeal was heard by Mynhardt J during May 1997. It
was dismissed
with costs. The judgment by Mynhardt J has since been reported as
Unitrans
Passenger
Bpk v Voorsitter, Nasionale Vervoerkommissie en Andere
,
1997
(4) SA 663
(T).
The
learned judge granted leave to appeal to this Court.
THE
TRANSNET APPEAL
(CASE NUMBER : 415 / 97)
[10] In
all relevant aspects this appeal is identical to that of the
Greyhound
appeal,
except that Transnet is the Appellant. Transnet too, in a separate
application, but on the same grounds, sought an order
declaring the
NTC to be incompetent to consider and give a decision in the
application made by Interkaap for the relevant transport
permit. In
the judgment of Mynhardt J, referred to above, this application was
also dismissed with costs. The learned judge
granted Transnet leave
to appeal to this Court.
[10] Counsel
for the parties in both appeals dealt at length with the present
state of the law regarding the retroactive effect
of amending
statutes.
[11] One
may start the
conspectus
by
stating the time-honoured principle formulated in
Peterson
v Cuthbert and Co Ltd
1945 AD 420
at 430, based upon the Roman-Dutch law, that no statute
is to be construed as having retrospective operation (in the sense
of
taking away or impairing a vested right acquired under existing
laws), unless the Legislature clearly intended the statute to have
that effect (see also
inter
alia
Bartman
v Dempers
1952 (2) SA 577
(A) at 580 C).
[12] Then
there is the distinction made in the case law between “true”
retrospectivity
(
i.e.
where an Act provides that from a past date the new law shall be
deemed to have been in operation) and cases where the question
is
merely whether a new statute or an amendment of a statute interferes
with or is applicable to existing rights, (see
Shewan
Tomes and Co v Commissioner of Customs and Excise
1955 (4) SA 305
(A) at 311;
R
v Grainger
1958 (2) SA 443
(A) at 445 C
et
seq.
;
Euromarine
International of Mauren v The Ship Berg and Others
1986 (2) SA 700
(A)
at 710 E - J;
Adampol
(Pty) Ltd v Administrator, Transvaal
1989 (3) SA 800
(A) at 811 D - 812 D;
Transnet
Ltd v Ngcezula
[1994] ZASCA 192
; ,
1995 (3) SA 538
(A) at 548 H - 549 D (
“
Transnet
”
);
National
Iranian Tanker Co v MV Pericles GC
1995 (1) SA 475
(A) at 483
I).
[13]
It
is common cause that in the present case the amendment is not
retrospective in the first mentioned,”strong” sense.
But is it retrospective in the second, “weaker” sense,
and if so, does affect only the future conduct of the pending
proceedings, or does it reach back to nullify the steps that were
taken in the past before the proclamation came into force?
[14] There
was a time when a distinction was made between amending statutes
affecting substantive rights and those affecting
procedure only (see
inter
alia
Curtis
v Johannesburg Municipality
1906 TS 308
; Steyn,
Uitleg
van Wette
,
fifth edition, 1981 : 90 - 93). This distinction cannot be
decisive, because many amending statutes may appear to be procedural
in nature but in fact impact on substantive rights. The appeals now
under discussion may be illustrations of the difficulty
of
distinguishing between procedural and substantive matters. The
divesting of the NTC’s power to adjudicate the Interkaap
application, if that be the case, may affect the eventual outcome of
the application if it is heard by a Board. (See the remarks
in
Minister
of Public Works v Haffejee NO
[1996] ZASCA 17
;
1996 (3) SA 745
(A) at 752 B - 753 C).
[15] Even
accepting that the matter under discussion relates to procedure, a
useful and necessary distinction is that between
the case where a
statute amending existing procedures comes into effect
before
the
procedure has been initiated, and the case where the amending
statute comes into effect
after
the procedure has been initiated and is pending.
[16] In
the first type of case, it has usually been held that the new
procedure
applies
to any action instituted or application initiated after the date on
which the amending statute takes effect unless a contrary
intention
appears from the legislation. The ratio of this rule is
understandable. By the time the action is instituted or the
application initiated, the old procedure is not part of the law any
more. Even if the old procedure existed when the cause of
action or
the cause of the application arose, that in itself does not create a
right to rely on procedure which no longer exists.
Minister
of Public Works v Haffejee NO
supra
,
at 755 B - E makes that clear.
[17] We
have to deal, however, with the second type of case,
i.e.
where the
amending
statute took effect
after
the action had been instituted or the procedure initiated.
Considerations other than those under discussion in
Haffejee
may apply, as was expressly recognised in that case, at 754 A - G.
[18] What
is the correct approach in cases such as the present where the
action
was instituted or the application was initiated
before
the amending legislation came into being?
The
rule is that unless a contrary intention appears from the amending
legislation,
the existing (old) procedure remains intact. This was laid down in
Bell
v Voorsitter van die Rasseklassifikasieraad en Andere
,
1968 (2) SA 678
(A).
In
that case the appellant had initiated proceedings under sec 11 (1)
of
the
Population Registration Act 30 of 1950 to lodge a complaint against
the racial classification of the third respondent. The
application
was enrolled for hearing by the Board on 25 May 1967. On 19 May
1967 Act 30
of 1950 was amended. The impact of one of the
amendments was to extinguish the
locus
standi
of the appellant to apply to the Board in respect of a third party
such as the third respondent. The amending Act was, furthermore,
expressly given retrospective effect to 7 July 1950,
i.e.
the date of the introduction of Act 30 of 1950.
[19] In
spite of the apparently clear wording of the amending legislation
this
Court
held that the appellant was entitled to pursue his application to
the Board and to have it dealt with in terms of the unamended
statute. Relying on P. Voet,
De
Statutis
8.1.3 Para 1, secs 2 (c) and (e) of the Interpretation Act, and on
Bartman
v Dempers
,
1952 (2) SA 577
(A), Botha JA encapsulated the rule as follows (at
684 E - H) :
Die
aanvaarding as deel van ons reg van die reël dat waar ‘n
wetsbepaling terugwerkend of andersins gewysig word onderwyl
‘n
geding hangende is, die regte van die gedingvoerende partye, by
onstentenis van ‘n ander bedoeling, volgens die
wetsbepalings
wat ten tyde van die instelling van die geding gegeld het, beoordeel
moet word, blyk dus duidelik te wees. Dat
dit die reël is wat
ook deur die Engelse Howe by die uitleg van
Wette
toegepas word, blyk duidelik uit die gewysdes waarna in Bartman v
Dempers,
supra
,
verwys word. Sien ook Maxwell, Interpretation of Statutes, 111de
Uitg., bl. 212).
By
afkondiging van Wet 64 van 1967 op 19 Mei 1967, was appellant se
beswaar van 25 Junie 1965 reeds deur die Sekretaris van Binnelandse
Sake, ingevolge die destyds geldende bepalings van art. 11, na die
in daardie artikel bedoelde raad vir beslissing verwys, en
is die
beswaar reeds deur die raad vir oorweging ter rolle geplaas en die
appellant aangesê om op die bepaalde dag met
sy getuies
aanwesig te wees. Op bedoelde datum was oorweging van appellant se
beswaar dus reeds by die raad hangende, en het
hy die reg, binne die
bedoeling van art. 12 (2) (c) van die Interpretasiewet, 1957, op ‘n
beslissing van sy beswaar, verkry.
(Vgl. Mahomed, N.O v Union
Government,
1911 AD 1
op bl. 10).
Botha
JA also dealt with the fact that the amending legislation was
expressly given retrospective effect; and he considered whether
the
amendment was, therefore, applicable to
pending
applications
.
He decided
not
,
for the following reasons, which seem to me to be particularly apt
to the appeal before us:
(a) No
provision had been made in the amending legislation for
the
repayment or forfeiture of the deposit paid by the applicant to the
Board. The absence of such a provision, Botha JA held,
was an
indication that the legislature did not intend the amending
legislation to affect an application pending before the Board.
(b) The
retrospective application of the amending legislation could lead to
inequitable results.
[20] A
similar result was achieved in
Richard
R. Currie Properties Ltd v Johannesburg City Council
,
1986 (2) SA 777
(A). During May 1983 Woodrich Investments (Pty) Ltd
submitted an application to the Johannesburg City Council in terms
of sec
4 (1) of the Sectional Titles Act 66 of 1971 for approval of
a sectional division of a block of flats. During 1983 the block was
sold to the appellant which intended to proceed with the pending
application. At that stage the application had not been considered
by the respondent City Council, nor had it done so by 1 October 1983
when certain amendments to the said Act came into operation.
Respondent took the view that the amending legislation was
applicable also to pending applications, and it refused to hear the
appellant’s application because it did not comply with newly
prescribed formalities. The appellant sought a declaratory
order
that the respondent was obliged to consider the application without
regard to the amending legislation. The court
a
quo
in refusing the application, held that the amendment had
retrospective effect. The appeal succeeded, this Court deciding
unanimously
that the amending statute was not applicable to pending
applications. Hefer JA held that the amended new procedural
requirement
could not be complied with retrospectively, nor was
there any provision made for a pending application to be amended,
rectified
or supplemented. The inevitable result of giving
retrospective effect to the amendments would be that all pending
applications
were automatically doomed to fail without even being
considered. That could hardly have been intended.
[21] That
the question of fairness and equity should be considered in
deciding whether legislation amending procedure is applicable
to
pending applications or actions, also appears from the judgment of
my brother, Marais JA, in
Haffejee
.
He said (at 754 B - G) :
The
manifest purpose of the amending legislation was to eliminate
compensation courts from the expropriation scene and to direct
all
future claims for compensation, irrespective of amount, to the
Supreme Court or to arbitration if the parties so agreed.
The fact
that the Legislature may have had perforce and
ex
necessitate
to allow such compensation courts as had already been appointed and
were already seized with claims to compensation to complete
their
tasks, does not derogate from the plainly expressed intent of the
legislature to do away with such courts with effect from
1 May 1992.
The unavailability after 1 May 1992 of a compensation court to a
claimant whose right to compensation arose before
that date but had
not been invoked in that court by that date is not the consequence
of an anomalous act of irrational legislative
discrimination against
him
or
her. Nor does implied legislative willingness (if that is what it
be) to allow claimants who had instituted claims for compensation
in
the compensation courts before 1 May 1992 to proceed with their
claims in those courts amount to an arbitrary and unjustifiable
favouring of such claimants. The disruption, inconvenience, wastage
of time and money, and other complications which could attend
insistence upon pending and,
a
fortiori
,
pending part-heard cases being re-instituted before the Supreme
Court are so obvious that they require no elaboration and there
is
no provision in the legislation for the mere transfer of such cases
to the Supreme Court. Indeed, it is difficult to envisage
how
provision could fairly and effectively be made for the transfer of a
case which is actually part-heard. These considerations
are
entirely absent in a case such as the respondent’s where
proceedings had not been instituted by 1 May 1992. I find
no
indication, clear or otherwise, in any of this that a claim such as
the respondent’s was to continue to be maintainable
in a
compensation court.
[22] Of
course, there may be cases where an amending statute introduces new
procedural provisions which may on a proper interpretation,
leave
intact the steps that have already been taken and operate
prospectively only. But that will not be the position where
prospective operation would render abortive the steps taken in the
past - unless such was the clear intention of the legislator.
To
apply the statute to the pending application in the present case
would extinguish there and then the ability to proceed
with the
application. It would nullify the steps already taken by Interkaap.
[23] Applying
the law to the facts of the present case, I can find no indication
at all, express or implicit, that it was or could
have been the
intention of the legislature that the amending legislation should be
applied to a pending application with the
effect of preventing it
from proceeding before the NTC to its final determination by that
body. No provision is made for the
transfer of a pending
application before the NTC to a Local Road Transportation Board. No
provision is made for the repayment
of the application fees paid by
the applicant. No indication is given of how the application should
be proceeded with. No provision
is made for compensating the
applicant for wasted costs and expenses in preparing and presenting
the pending application. It
is unthinkable that the amending
legislation should affect cases where the hearing has already taken
place, and the NTC, having
reserved judgment, is within a day or two
of announcing its decision. The gross injustice and impracticability
of applying the
amending legislation to such a case is obvious. The
principle is the same whether the application has just recently been
made
or just recently been heard.
I
am of the view, therefore, that the amending statute does not affect
applications pending before the NTC.
[24] The
appellants, however, have a second string to their bow. They submit
that the application by Interkaap was not pending
on 1 May 1996. It
could, they say, only have become ‘pending’ when the NTC
acted on the application by advertising
it in terms of the Act. By
that date the amending legislation had been put into operation, and
would therefore be applicable.
The NTC could therefore not proceed
with the present matter because, so it was argued, the application
was not pending when
the amending legislation took effect on 1 May
1996. Reliance was placed on a remark by Price J in
M.
G. Holmes (Pty) Ltd v National Transport Commission and Another
,
1951 (4) SA 659
(T) at 667 A - B,
viz.
that the crucial date on which to decide whether the applying
company was properly incorporated and registered was the date of
the
hearing by the Commission and that :
A
document which for convenience is called an application does not
become an application until it is presented to the body which
has to
consider it. Previous to that date it is nothing more than a
notification of an intention to make an application in terms
of the
document.
[25] I
respectfully disagree with this
dictum
.
It is clear from the provisions of the Act itself that an
application becomes pending as soon as the prescribed forms are
lodged with the Secretary of the Commission. What the Commission
receives is called in sec 13(1) an
application
.
The Commission may refuse to consider such
application
(sec 13(2)(a); sec 13(2)(bA) to (bD)). The Commission must, before
considering the matter, obtain particulars of the
application
(sec 14(1)). An objector objects to the
application
published in terms of sec 14(1) (sec 14(2)).
It
may well be, as Price J held in
M.G.
Holmes
,
that the crucial date for establishing whether an application is
formally in order is the date of the hearing, but for present
purposes that does not mean that before that date there is no
pending application.
[26] I
am of the view that the amending legislation was not applicable to
the Interkaap application and that the NTC is entitled
and obliged
to deal with the Interkaap application as if the amending
legislation had not been passed.
Accordingly,
both appeals are dismissed with costs.
P.J.J.
OLIVIER
CONCURRING
:
Hefer
JA
Howie
JA
Marais
JA
Madlanga
AJA