Interlink Postal Courier SA (Pty) Ltd v South African Post Office Ltd (1) (473/2001) [2003] ZASCA 24 (27 March 2003)

.RTF of original document

THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

Reportable

CASE NUMBER 473/2001

In the matter between :

INTERLINK POSTAL COURIER SA (PTY) LTD Appellant

and

THE SOUTH AFRICAN POST OFFICE LTD Respondent

___________________________________________________________________________

Coram: MARAIS, ZULMAN, CAMERON, CLOETE et LEWIS JJA

Heard: 24 FEBRUARY 2003

Delivered: 27 MARCH 2003

The interpretation of s 16 of the Postal Services Act, 124 of 1998 in relation to the provision of a ‘courier service’.

___________________________________________________________________________

J U D G M E N T

__________________________________________________________________________ MARAIS JA/

MARAIS JA

[1] I have had the benefit of reading the judgment of my learned brother Zulman JA. I share his view as to the lack of merit in the preliminary point but I am unable to share his view as to the fate of the appeal.

[2] I do not consider the meaning ascribed by the court a quo to the words “courier services” to be a restrictive meaning. In my view, the ordinary meaning of those words does not encompass the depositing in a letter box at a given address of the items listed in paragraph 1 (a) of Schedule 2 when they are intended to be delivered to a particular person.

[3] It is common knowledge that the facilities for the reception of such items which exist in residential and professional and business properties in South Africa range from rudimentary to highly sophisticated.

To say that a letter addressed not merely to a particular address but to a named addressee at that address and which is pushed through the slot provided in a gate or door, and which letter may lie upon the floor or in a letter box until someone (not necessarily the addressee) notices it and picks it up or takes it out, has been delivered by a courier to the intended recipient is, to my way of thinking, to debase the commonly understood concept of a courier service.

[4] It is so that the dictionary meanings of the word “courier” all envisage a delivery of something but they obviously do not include a common or garden postman who “delivers” by leaving an item at a street address. That this is so is, I think, reinforced by the structure of the Act which clearly envisages a distinction between ordinary postal services (which plainly postulate address rather than addressee deliveries) and courier services. To read the latter as requiring merely address and not personal deliveries would elide unacceptably the distinction that lies at the heart of s 16. Accordingly, where a letter is addressed to a named person and a courier service is to be provided then it is to that person that delivery must take place – not simply to the address at which that person is thought to be. It is conceivable of course that a courier might be engaged to deliver a letter or parcel to a particular place as opposed to a particular person. But where the method of delivery to a named intended recipient is merely to leave the item at an address at which the intended recipient might or might not be, or at which the item delivered might be lost or misappropriated or put aside or forgotten before it reaches the recipient’s hands, I do not believe that it can be said, within the meaning of the Act, to have been delivered to the intended recipient by means of a courier service. The method of “delivery” employed has been no different from that of a common or garden postman.

[5] That there are other elements present in the service provided which are characteristic of a courier service takes the matter no further. If a critical element of a courier service is lacking (and in my view actual delivery of the item to the named intended recipient or the intended recipient’s authorised agent to accept delivery, as opposed to leaving it at his, her or its supposed address, is such an element), it cannot be classified as a courier service.

[6] I reach that conclusion simply by giving to the words “courier service” what I take to be their ordinary meaning, a meaning which seems to me to be underscored by the context in which they are used in the Act. I leave out of account such evidence as there might have been as to the meaning given to the expression by the trade.

[7] It is also of some significance that the Act itself, in dealing with the future licensing requirements for a courier service (s16(5)(d)(ii)), requires that an applicant for a licence must undertake, inter alia, to ‘track and trace the whereabouts of any item received or collected for delivery by such a person’s business undertaking’. If it were contemplated that delivery to a street address, where no evidence of receipt of an item would be obtained, was sufficient for such delivery, it is hard to see how this requirement could be met. How would a courier track and trace an item if it had been simply left at a street address? While the subsection does not, of course, define the nature of a courier service, and while it relates to undertakings to be made in future by an applicant for a licence, it gives at least some indication of what the legislature meant by ‘courier’. Leaving an item in a postbox does not allow for meaningful tracking and tracing, and thus it cannot have been intended that that form of delivery would suffice to qualify the service as a courier service.

[8] It is ordered that the appeal be and is hereby dismissed with costs including the costs of two counsel.

______________________

R M MARAIS

JUDGE OF APPEAL

CAMERON JA )

LEWIS JA ) CONCUR

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