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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relevant permits from the NTC to Boards were repealed.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, 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 (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
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