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IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 424/98
In the matter
between:
WILLEM JOHANNES JANSE VAN
RENSBURG
Appellant
and
THE MINISTER OF
DEFENCE
Respondent
CORAM : NIENABER, HARMS, PLEWMAN JJA,
MELUNSKY, FARLAM
AJJA
DEFENCE ACT REGULATIONS - INTERPRETATION - DIFFERENCES BETWEEN ENGLISH AND
AFRIKAANS TEXTS - APPELLANT ATTEMPTING TO REJECT ONE CONDITION
OF HIS TRANSFER
WHILE ACCEPTING OTHERS.
MELUNSKY AJA
MELUNSKY AJA:
[1] This appeal is concerned with the position of the
appellant on the seniority roll (ansiënniteitslys) of the South African
National Defence Force (“the SANDF”). The appellant started his
military career in 1986 as a national serviceman. At
the beginning of 1988, and
after the completion of his national service, he joined the Permanent Force in
the Corps of the Military
Police with the rank of lieutenant. On 1 January 1991
he was promoted to the rank of captain.
[2] After obtaining the degree of B
Juris at the end of 1992, the appellant applied to be transferred to the
Professional Officers'
Corps (“the POC”) as a military law officer.
In anticipation of his transfer he signed a written declaration at the
request
of the SANDF on 11 December 1992 in which he stated that he was completely
conversant with the terms relating to his transfer
contained in the declaration
and that he accepted them. The only term that has relevance for the purposes of
this appeal is (a)
which is an acknowledgement that
“[m]y senioriteit in die nuwe beroepsklas geld van die dag waarop ek oorgeskakel word en dat my militêre en funksionele bevordering kan daardeur vertraag word.”
[3] On 8 February 1993 the
appellant was informed in writing, under the hand of the Chief of the Army
(Personnel Utilisation), that
approval for his transfer from the Military Police
Corps to the POC as a military law officer had been granted with effect from 1
January 1993 subject to certain conditions, one of which was
“die behou[d] van rang en salaris en verlies van ansiënniteit.”
On the same day the appellant in
writing accepted the conditions. To all intents and purposes, therefore, he was
appointed a military
law officer with the rank of captain at his current salary
with effect from 1 January 1993 but with a loss of seniority.
[4] It is
necessary to detail what the loss of seniority entails in this case. According
to the SANDF it means that on his transfer
the appellant was to be regarded as
junior to a captain D F Britz, who was then the most junior officer in the POC.
Britz had been
promoted to the rank of captain on 1 January 1993. Although the
appellant had attained that rank two years earlier, his seniority
date, too, was
deemed to be 1 January 1993 and he would rank immediately below Britz on the
seniority roll. It should be noted that
an officer's promotional prospects and
remuneration depend on his position on this roll. If the appellant had retained
the seniority
which he had earned in the Military Police, he would have been due
for promotion to the rank of major on 1 January 1994 and to the
rank of
lieutenant colonel on 1 January 1997, whereas, having regard to the loss of
seniority, the dates for promotion were 1 January
1996 and 1 January 1999
respectively. It is hardly necessary to mention that the holding back of
promotion did adversely affect
the appellant's salary.
[5] On 6 February 1996
it came to the appellant's notice that the respondent, the Minister of Defence
(“the Minister”),
had not approved, or even considered, his transfer
to the POC. He made various representations to superior officers in which he
contended, for reasons that will become apparent later, that only the Minister
could require him to lose his seniority. On 8 October
1996, and after he had
been promoted to the rank of major, he wrote a letter to the officer commanding
his division in which he denied
that he had “forfeited” his
seniority. He said in this letter:
“It is my submission that both the General Regulations as well as the Personnel Administration Standard (PAS) must be used to enable the Minister to exercise his discretion.”
The
appellant was invited to make further representations which he did by letter
dated 11 December 1996 in which he wrote, inter alia:
“In the light of General Regulations (GR) Chapter 3 par 11.5 it is absolutely vital for the Minister to consider an officer's age, military and educational qualifications and experience AND as a condition for such transfer or reclassification, before such officer can be reclassified in his rank.”
[6] As a result of the appellant's
representations the matter was eventually referred to the Minister. On 17
January 1997 the Chief
of the SANDF advised the Minister that, in his view, the
appellant's “reclassification was handled correctly”. He made
certain recommendations which the Minister approved on 26 August 1997. These
were that the appellant be “reclassified to military
legal officer with
entrance from 1 January 1993"; that he retain his rank and salary “as on
1 January 1993"; and that he
loses his seniority date of 1 January 1991 with
his new seniority date being 1 January 1993. The Minister's decision was
conveyed
to the appellant before he instituted legal proceedings.
[7] The
appellant was of the view that the SANDF had, in effect, completely ignored his
five years' service in the Military Police.
Aggrieved at this perceived
injustice and at the loss of his seniority, he instituted motion proceedings in
the Transvaal Provincial
Division. The matter came before Spoelstra J who
dismissed the application but made no order as to costs. This is an appeal,
with
the leave of the court a quo, against the dismissal of the
application.
[8] Before coming to the main issues on appeal, two contentions
raised by the appellant in his affidavits can be disposed of briefly.
The first
is his averment that after the transfer to the POC he retained the right to be
promoted to major during 1994 and that
the loss of seniority meant only that he
was to be regarded as the most junior captain due for promotion during that
year. According
to this argument he should have been promoted to the rank of
major on 1 August 1994 and to lieutenant colonel three years later.
Secondly,
he repeatedly contended that his five years' service in the Military Police had
been completely ignored by the SANDF.
Counsel for the appellant, quite
correctly, did not persist in these contentions. While he strenuously disputed
that the respondent
was entitled to require the appellant to take a lower
position on the seniority roll, he accepted the SANDF's interpretation of how
the loss of seniority was to be determined.
[9] The outcome of the appeal
depends largely on the construction and application of Chapter III of the
General Regulations (“the
regulations”) made in terms of s 87(1) of
the Defence Act, 44 of 1957 and published on 10 December 1971. The title of
Chapter
III is “Officers (including Female Officers and Nursing Officers)
and Candidate Officers” and, according to the sub-heading,
the Chapter is
concerned with “Ranks, Precedence, Appointments, Promotions, Termination
of Service and Reserve Liabilities”.
The arguments submitted on the
appellant's behalf were based on regulation 11 and more particularly regulations
11(1) and (5).
Regulation 11(1) reads:
“Except as otherwise provided in this regulation, the seniority of any officer (including an officer on whom temporary commissioned rank has been conferred in terms of section 83 of the Act) in any substantive or temporary rank shall, in relation to other officers of the same or equivalent substantive or temporary rank, be determined by the date of his appointment in or promotion to such substantive or temporary rank: Provided that any officer holding substantive rank shall be senior to all officers holding temporary rank of the same or equivalent grade.”
There are significant
differences between the English and Afrikaans versions of regulation 11(5). The
former provides:
“Any officer transferred or reclassified in the exigencies of the service, but not at the request of the officer concerned, from any branch, arm of the Force or corps, shall not as a result thereof forfeit his seniority: Provided that if any officer serving in a professional capacity applies for reclassification for service in any capacity other than a professional capacity, the Minister may, with due regard to such officer's age, military and educational qualifications and experience and as a condition of such transfer or reclassification, require that officer to accept a lower position on the seniority roll.”
The Afrikaans text reads as
follows:
“’n Offisier wat weens diensvereistes, maar nie op versoek van die betrokke offisier nie, van enige diensvertakking, weermagsdeel of korps na ‘n ander diensvertakking, weermagsdeel of korps oorgeplaas of herklassifiseer word, verbeur nie sy ansiënniteit as gevolg daarvan nie: Met dien verstande dat indien ‘n offisier aansoek doen om sodanige oorplasing of herklassifikasie of as ‘n offisier, wat in ‘n professionele hoedanigheid dien, aansoek doen om herklassifikasie vir diens in ‘n ander hoedanigheid as ‘n professionele hoedanigheid, die Minister, met behoorlike inagneming van sodanige offisier se ouderdom, militêre en onderwyskwalifikasies en ondervinding en as ‘n voorwaarde van sodanige oorplasing of herklassifikasie, van daardie offisier kan vereis dat hy ‘n laer plek op die ansiënniteitslys aanvaar.”
[10] The differences between the two texts
are discussed in par 12 below. The language of both texts gives rise to
difficulties in
interpretation. In particular it is not altogether clear what
is meant by the words “transfer” and “reclassification”.
The former seems to apply to a movement from one branch, arm or corps to
another, while “reclassification” may denote
vertical movement or
change of function within a branch, arm or corps. In the main provision of both
texts and in the first part
of the Afrikaans version of the proviso, the words
appear to be used interchangeably. The English version of the proviso contains
an internal contradiction in that initially it deals with a reclassification
only but subsequently refers to “such transfer
or reclassification”.
The second part of the Afrikaans version of the proviso may be tautologous, if,
as appears to be the
case, the first part covers all transfers and
reclassifications at the request of an officer. Fortunately it is not necessary
to
resolve all these difficulties as the appellant's circumstances do not fall
within the English text or the second part of the Afrikaans
text of the
proviso.
[11] A proviso is usually an exception or qualification to the
contents of the preceding enactment. Its effect is
“to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it; and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect.”
(Craies on Statute Law,
7th ed, at 218; South African Textile and Allied Workers' Union
and Others v Skipper International (Pty) Ltd 1990 (4) SA 842 (A) at
847A-D; Land- en Landboubank van Suid-Afrika v Rousseau NO 1993 (1) SA
513 (A) at 517B-D.) It does not follow, however, that a proviso always consists
of a limitation on the enactment to
which it is attached. It may, in substance,
be a fresh enactment which adds to and does not merely qualify that which goes
before
it. (See S v Rosenthal 1980 (1) SA 65 (A) at 81E-H;
Halsbury's Laws of England, 4th ed Reissue, Vol 44 (1)
par 1400.)
[12] The effect of the proviso to regulation 11(5), according to
both texts, is not to provide exceptions or qualifications to the
rights of an
officer who is transferred or reclassified “in the exigencies of the
service”. The proviso is, in truth,
an enacting provision which deals
with the position of an officer who himself seeks to be reclassified or
transferred. The English
version thereof covers one case only - that of an
officer serving in a professional capacity who applies for a reclassification in
a non-professional capacity, a circumstance which is also dealt with in the
second part of the Afrikaans text. The first part of
the Afrikaans text,
however, goes much further: it deals with the position of any officer who
applies to be transferred or reclassified
from any branch, arm or corps to
another. (The English text does not expressly provide for a transfer to
some other branch, arm or corps, but a provision to this effect is to be
implied.)
[13] It is of crucial importance to determine whether preference
should be given to the English or the Afrikaans texts of the proviso.
The
English version does not cover the transfer of the appellant from the Military
Police to the POC, nor does it provide for the
Minister to require him to accept
a lower position on the seniority roll as a result of such transfer. The
Afrikaans text, if applicable,
clearly covers the case of the appellant and it
authorises the Minister to require the appellant to accept a lower position on
the
seniority roll as a condition of his transfer or reclassification. In the
court a quo Spoelstra J held that the English version was to prevail. He
based his conclusion on the following observations of Van den Heever,
JA in
New Union Goldfields Ltd v Commissioner for Inland Revenue 1950 (3) SA
392 (A) at 406G-H:
“... when a Legislature speaks in two languages in the same breath, it seems to me that that which is common to both versions must be regarded as Parliament's true intention. The surplus on one side must be regarded as due to incautious expression.”
On the basis of the English
text, which makes no provision for the appellant's circumstances, Spoelstra J
held:
“Daar is nie aangetoon dat die voorwaardes wat vir die applikant se herklassifikasie gestel is en wat hy aanvaar het, nie +n geldige en afdwingbare ooreenkoms daar gestel het nie.”
For the purposes of
this appeal, however, it is not necessary to decide whether an officer may
conclude a valid and enforceable agreement
relating to his seniority where the
circumstances are not covered by the regulations. In this court both counsel -
the respondent's
counsel after some equivocation - submitted that the Afrikaans
version should prevail. For reasons which follow, I agree with this
submission.
[14] In New Union Goldfields Van den Heever JA was
concerned with the interpretation of an Act of Parliament in the light of s 67
of the South Africa Act, 1909.
Section 67 provided, inter alia, that the
signed text should prevail in the case of conflict between the English and
Afrikaans version. (Similar provisions were
contained in s 65 of the Republic
of South Africa Constitution Act, 32 of 1961 (subsequently renamed) and s 35 of
the Republic of
South Africa Constitution Act, 110 of 1983.) The learned
judge's views, however, were obiter and were expressed in the course
of a
dissenting judgment. In R v Silinga 1957 (3) SA 354 (A) at 358H-359D
Schreiner JA (who delivered the majority judgment in New Union
Goldfields) made the following observations:
“As was remarked in the majority judgment in the New Union Goldfields case, at p. 399, the question of the operation of secs. 67 and 91 of the South Africa Act is interesting and important; I should add that, in my view, it is also a difficult question upon which the last word has not been spoken. For instance, what one might term the highest common factor of the texts, the more limited meaning as opposed to the wider meaning, does not meet the difficulty that arises when the difference cannot be described in terms of width or narrowness. Nor does it, I think, take account of important elements in interpretation to which effect should if possible be given, such as whether the language to be interpreted appears in a provision imposing a penalty or in one granting a power or an exemption. Where there is no provision like secs. 67 and 91, as in the case of regulations, the Court can use both texts freely to discover the intention to be attributed to the draughtsman (cf. Lekhari v Johannesburg City Council, 1956 (1) S.A. 552 (A.D.), per CENTLIVRES, C.J. at p.557). But although in such a case the highest common factor notion may sometimes be important, the application of a wider or a narrower meaning may depend on whether the provision is penal or not (Rex v. Alberts, 1942 A.D. 135 at p.140). In cases falling under sec. 67 or sec. 91 a rule that, when one text admits of two meanings and the other of only one of those two, the meaning common to both must be adopted might in a particular case produce the result that effect is given to the meaning of the signed text which is less proper, according to ordinary principles of interpretation, to the exclusion of the more proper. These and similar considerations seem to justify a doubt whether secs. 67 and 91 do not in their concluding sentences give preference to the signed text whenever there might be a different result according as the one text or the other is followed.”
(See also R v Vilbro
and Another 1957 (3) SA 223 (A) at 231 in fin - 232A and Peter v
Peter and Others 1959 (2) SA 347 (A) at 350E-H.)
[15] The learned judge
a quo seems to have assumed that the highest common factor approach
should be applied without exception wherever the language of one text
of a
statute or regulation was wider than that of the other. That approach has indeed
been applied in this Court and in the Provincial
Divisions in cases in which its
application was regarded as appropriate, for instance, to give the benefit to an
accused in a penal
statute (S v Makunga and Others 1977 (1) SA 685 (A) at
691 in fin - 692C), to protect an accused against “grave
prejudice” or where the wider meaning would lead to an anomaly (S v
Moroney 1978 (4) SA 389 (A) at 408H-409C). However, as Schreiner JA
indicated in R v Silinga, it is not a rule of universal application. In
an article entitled “Statutory Bilingualism as an Aid to Construction in
South
Africa” in 107 (1990) SALJ, Devenish wrote the following at
448:
“The highest-common-factor methodology may have to be departed from in order to give expression to the true intention of the legislature. That intention may be inferred from a process of contextual interpretation involving the statute as a whole and its internal anatomy, in a way that makes it clear that the wider meaning rather than the highest common factor must be applied.”
(See, also, Devenish: Interpretation of
Statutes 151.)
[16] Although the provisions of s 67 of South Africa Act
and its successors have no application to matters concerning the construction
of
regulations, the highest common factor approach has often been adopted,
particularly in relation to the interpretation of regulations
which contain a
penal provision. Thus, in Rex v Alberts 1942 AD 135, De Wet CJ said at
140:
“In dealing with these differences between the two versions it must be borne in mind that the provisions of secs. 67 and 91 of the South Africa Act do not apply to Regulations promulgated in the Gazette. The Regulations we are dealing with were presumably approved by the Executive Council before the Proclamation promulgating them was issued by the Governor-General. It seems to me to be irrelevant to inquire whether the English or Afrikaans version of the Proclamation was signed by the Governor-General: indeed it is probable that he signed both versions. The Regulations have been duly promulgated in both official languages and both versions have the force of law. They are of a penal nature and a citizen is entitled to consult either version in order to ascertain what his duties and obligations are. That being so, it seems to me it is the duty of the Court, if possible, to adopt an interpretation which both versions are capable of. In the present case we have to deal with penal provisions, the English version of which is capable of bearing a wide meaning while the Afrikaans version is only capable of a restricted meaning. Under those circumstances I think we must adopt the restricted meaning of the Afrikaans version.”
[17] There is, however, no rule of
construction that is to be applied in every case where there are differences
between the English
and Afrikaans texts of a regulation. In Du Plessis and
Others v Southern Zululand Rural Licensing Board and Another 1964 (4) SA 168
(D), Henning J approached the matter in the following way at 172H-173A:
“Regulations are not required to be signed by the person making them, and even where one text has been signed it would not thereby acquire greater force than the other. In the case of a difference in wording regard may be had to both versions to ascertain the true intention of the lawgiver, and the interpretation which accords with that intention will prevail. Steyn Uitleg van Wette, 3rd ed. p. 136. Omissions in one version may be remedied by reference to the other version. R v Goldberg, 1959 (3) S.A. 429 (T) at p. 439.”
To that may be added the principle
that a court should, where possible, adopt an interpretation of which both
versions are capable.
If this is not possible, regard may be had to other
principles, for example the preference of the text that is more favourable to
the person affected (cf. Bolnik v Chairman of the Board appointed by the SA
Council of Architects 1982 (2) SA 397 (C) at 401D-E).
[18] A court
fulfills its function by attempting to give effect to the intention of the
lawgiver. If the highest common factor approach
is applied mechanically it may
result in a construction which is purely arbitrary and which could not have
been intended. Save,
perhaps, where penal provisions are concerned, this
approach should not be adopted as a rule of first resort. All other methods
of
interpretation should be considered with a view to arriving at the intention of
the legislator. I leave out of consideration
the possibility that the two
versions may be so irreconcilable that a regulation may be held to be a nullity
(cf Kock v Scottburgh Town Board 1957 (1) SA 213 (D) at 215C).
[19] It
is in the light of the aforegoing principles that I turn again to consider the
provisions of regulation 11. It is reasonable
to assume that the regulation is
intended to be exhaustive of the subject with which it deals. This follows from
the provision in
regulation 11(1) that “except as otherwise provided in
this regulation” the seniority of an officer is to be determined
by the
date of his appointment or promotion. The first part of regulation 11(5) deals
with the retention of seniority in all instances
of transfer or reclassification
of officers in the exigencies of the service and not on the officer's own
application. The proviso
deals with the converse case: where seniority may be
forfeited because transfer or reclassification occurs on the application of
the
officer concerned. The English version of the proviso, as I have mentioned
earlier, makes provision for one such eventuality
only and one which, judging
from the examples furnished by counsel, is likely to occur only infrequently,
while the Afrikaans text
is of general application and conforms to the scheme of
the regulation. What is more, the English text deals with reclassification
only
and not transfer, while the later phrase “such transfer or
reclassification” appears to be explicable only on the grounds of a
material omission from that version. In my view, therefore,
the Afrikaans
version reflects the intention of the legislator and there is no reason why the
restricted meaning of the English
version should prevail.
[20] In the amended
notice of motion the appellant claimed the following relief in addition to costs
(I omit the prayers that were
not persisted in):
“2. Dat ‘n bevel verleen word wat verklaar dat die voorwaarde soos gestel in die seinberig gedateer 8 Februarie 1993 ingevolge waarvan daar deur die Hoof van Leer van die Appellant vereis is om afstand te doen van sy ansiënniteit, ultra vires en ongeldig is;
3. Dat die Respondent gelas word om die Appellant in sy ansiënniteit met effek van 1 Januarie 1993 te herstel ooreenkomstig die toepaslike voorskrifte van Regulasie 10 en Regulasie 11 van die Algemene Regulasies uitgevaardig in terme van Artikel 87 van die Verdedigingswet, No. 44 van 1957;
4. Dat die Respondent gelas word om die datum van die Appellant se bevordering tot die rang van Majoor reg te stel na 1 Januarie 1994 en die datum van sy bevordering na die rang van Luitenant-Kolonel reg te stel na 1 Januarie 1997.”
It is clear from the prayers and
from the contents of his affidavit and the submissions of his counsel, that the
appellant wishes
to retain his position as a military law officer in the POC.
His only complaint is against the requirement that he accepts a lower
position
on the seniority roll, a condition which, it was submitted, was invalidly
imposed. According to counsel's argument the
only functionary who could require
him to accept a lower position on the seniority roll was the Minister.
Consequently the condition
to this effect which was presented by the Chief of
the Army on 8 February 1993 was ultra vires and of no force and effect.
That the Minister subsequently imposed the same condition did not alter the
appellant's position, for,
so it was argued, it was not legally competent for
the Minister to impose a condition on 26 August 1997 which affected the
appellant's
seniority retroactively to 1 January 1993.
[21] It is important
to observe that the terms governing the appellant's transfer, which were
accepted by him on 8 February 1993,
are part of an indivisible whole. The
provision relating to his loss of seniority is inseparable from the other terms.
Consequently,
it is not open to the appellant to claim the benefit of his
transfer to the POC and, in the same breath, to rely on the alleged invalidity
of the requirement relating to his loss of seniority. Yet this is the result
that he seeks to achieve. His counsel submitted that
if the provision relating
to the loss of seniority is invalid, the appellant is entitled to the relief
claimed notwithstanding that
he does not wish to return to the status quo
ante. This submission is untenable. The appellant was entitled to accept
or reject the transfer in its entirety. He cannot abide by
the transfer and the
provisions relating to the retention of rank and salary and, at the same time,
require this court to order that
his loss of seniority is ultra vires or
otherwise unenforceable.
[22] It follows that the appeal cannot succeed and
it therefore becomes unnecessary to deal with the effect of the Minister's
decision
and the other matters raised in argument.
[23] All that remains is
the question of costs. Counsel for the appellant submitted that this Court
should make no order as to costs
irrespective of the outcome of the appeal. He
relied, in this regard, on the approach adopted by Spoelstra J in the court a
quo. The learned judge a quo made no order as to costs partly
because he considered the regulations to be almost incomprehensible and partly
because he held that
the appellant's argument was justified to the extent that
it was based on the Afrikaans version of regulation 11(5). These reasons
no
longer apply. In the court a quo the learned judge was called upon to
interpret various regulations that did not feature in the appeal. Moreover, the
appellant's
reliance on the Afrikaans version of regulation 11(5) did not, in
the result, prove to be successful. In all events this Court retains
a
discretion in relation to costs and, in my view, there is no reason why the
ordinary rule should not apply.
[24] The appeal is therefore dismissed with costs.
.............................
L S MELUNSKY
ACTING JUDGE OF APPEAL
Concur
:
Nienaber
Harms
Plewman JJA
Farlam AJA
SAFLII:
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