Interlink Postal Courier SA (Pty) Ltd v South African Post Office Ltd (2) (473/2001) [2003] ZASCA 25 (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'.

JUDGMENT

ZULMAN JA

[1] The issue in this appeal concerns the appellant’s right to conduct a ‘courier service’ in terms of the Postal Services Act, as amended^¹ (the Act). The court a quo (Fitzgerald AJ) interdicted and prohibited the appellant (the first respondent a quo), at the instance of the respondent (the applicant a quo) from inter alia,providing any type of 'reserved postal service which entails street delivery of postal articles'. The judgment is reported^². The appeal is with the leave of the court a quo.

[2] In argument before this Court the appellant’s counsel sought to reintroduce a point in limine, which had been expressly conceded and abandoned in the court a quo. The point is this. At the time when the application was heard in the Court a quo, the respondent had not yet been issued a licence as contemplated in s 16(3) of the Act. Accordingly the appellant contended that the respondent had no locus standi to complain that the appellant’s street deliveries exceed the bounds of a ‘courier service’ and infringed the respondent’s right to conduct a 'reserved postal service'. The basis for seeking to resurrect the point is that the concession is one of law and is accordingly not binding on the appellant. The respondent opposes the reintroduction of the point on a number of legal grounds. I believe that there is no merit in the point, if only for the simple reason that the respondent had a clear legal interest in the subject matter of the dispute. However, in the light of the conclusion that I have come to on the merits of the matter, it is unnecessary to consider the point any further.

[3] The Post Office Act^³ was amended in certain respects and repealed in others by the Act. Certain sections of the Act came into operation on 1 January 1999 whilst the remainder came into operation on 1 April 2000. It is to be noted that in so far as this appeal is concerned with the meaning of English words that the English text of the Act was signed by the President.

[4] Chapter lll of the Act is headed ‘REGULATION OF POSTAL SERVICES’. The chapter contains some 14 sections (ss 15 to 28). Of direct relevance to the matter at issue are ss 15(1) and 16(5) which provide as follows -

'15(1) Subject to the provisions of this Act, no person may operate a reserved postal service except under and in accordance with a licence issued to that person in terms of this Chapter.'

'16(5) (a) Any person who, immediately before the date of commencement of this section provided a courier service of a type contemplated in Schedule 1, must be regarded as being licensed to provide such a courier service, subject to paragraph (b).

(b) A person may not be regarded as being licensed in terms of paragraph (a) if that person has failed to apply to the Minister through the Regulator for such a licence within 90 days after the date of commencement of this section or within such extended period as the Regulator may allow.

(c) After receipt of an application in terms of paragraph (b) the Minister must, subject to paragraph (d), grant the application and thereafter the Regulator must issue a licence to the applicant.

(d) A person may not be licensed to provide a courier service in terms of this subsection unless that person undertakes -

(i) to receive, collect and deliver items contemplated in item 1 (a) of Schedule 1;

(ii) to track and trace the whereabouts of any item received or collected for delivery by such person’s business undertaking;

(iii) to deliver items within a definite time, in the case of deliveries across international borders;

(iv) to deliver items within the Republic on the date of receipt thereof or at the latest by 13:00 on the next working day; or

[5] The respondent no longer appears to attack the court a quo’s conclusion that the appellant is to be regarded as being licensed to provide a 'courier service', notwithstanding the fact that the appellant might have provided such a service unlawfully prior to the commencement of s16.^⁴ I am in respectful agreement with this conclusion.

[6] The crux of the judgment of the Court a quo on the essential matter now at issue is encapsulated in the following remarks of Fitzgerald AJ^⁵ -

'Having found that the first, third and fourth respondents are to be regarded as being licensed to provide a courier service, I now turn to deal with the further submission of Mr Burger [counsel representing the applicant in the Court a quo] that, in any event, and even in regard to these respondents, a courier service does not involve the speed delivery of postal items but rather, as he put it, 'door-to-door deliveries'.

It is apparent that no definition of courier service as used in s 16 is to be found in the Act. In this regard Mr Burger submitted that, where a statute deals with a particular trade or business and employs a term which is used in that trade or business, such term should be given the meaning used in that particular trade or business. (See Kommissaris van Doeane en Aksyns v Mincer Motors Bpk 1959 (1) SA 114 (A) at 119.)

Mr Burger submitted further that, insofar as the term 'courier service' is used in the context of a statute regulating the postal industry, it is proper to have regard to its meaning 'in that trade'. It is relevant in this regard that in the representations on the proposed Postal Bill of 1998, to which I have referred above, the express carrier industry stated in para 2.5 as follows:

'(I)t is important to take note and be mindful of the fact that the express carrier industry provides that which is generally referred to as a "value added service", including, inter alia, unlike the traditional services rendered by the Postal Company, door to door pick-up and delivery services, customs clearance services, meticulous proof of delivery including a track and trace service which enables a client to pinpoint the exact location of an article at any particular moment in time. These services are provided on an extremely time definite basis with the result that the normal business administration is not slowed down and/or hampered by delays.'

In answer, Mr Heunis [counsel representing the respondent in the Court a quo] submitted that statutes are as a rule addressed to the general public and not to a particular trade or section of the community. Therefore, so he continued, our Courts are reluctant to draw the conclusion that words and expressions in a statute are used in a technical sense. (See Association of Amusement and Novelty Machine Operators v Minister of Justice and Another 1980 (2) SA 636 (A) at 660.)

There is indeed no definition of the term 'courier service' in the Act. It is also correct that s 16(5)(d) thereof does, as Mr Heunis contended provide an indication of the attributes of a courier service. [The learned acting judge quoted the section and continued]

Accordingly, Mr Heunis submitted that I should determine the nature of courier services by reference solely to this section and to the ordinary meaning of the words used therein.

Mr Burger contended, however, that s 16(5)(d) itself contains words that must be given a meaning, viz 'delivery' and emphasised that these words were used in the context of a courier service which, as aforesaid, is itself not defined in the Act.

While it is indeed so that the absence of any specific definition of the term 'courier services' in the Act is deliberate, and while acknowledging the belated inclusion therein at s16(5), it seems to me that there is merit in these contentions of Mr Burger.

Accordingly, were I to give the language used in s16(5)(d) its ordinary, grammatical meaning, as contended by Mr Heunis, I would, in my view, thereby ignore that the Legislature did, in terms of the Act, intend to preserve a statutory monopoly (albeit while permitting courier services within the activities of reserved postal services) for the applicant.

Accordingly, and having regard to the attributes of a courier service as described in the representations made on behalf of the industry (and to which, albeit in another context, Mr Heunis submitted I should have regard), the language used in s 16(5)(d), in my view, falls to be restrictively interpreted to exclude (notwithstanding the apparently unqualified use of the words 'deliver' and 'delivery' therein) street to street deliveries by a courier service.

This latter activity is so traditionally a fundamental characteristic of the activities of the applicant that to ignore the meaning ascribed thereto in the trade in the interpretation of s16(5)(d) would serve merely to undermine the obvious intention of the Act, namely to preserve the statutory monopoly of the applicant. A contrary construction would, in essence, equate a courier service with that reserved service provided by the applicant, save for speed of delivery, and the alleged powers to track and trace which are said to be particular to the courier service. This seems unwarranted.

In all the circumstances I am of the view that Mr Burger is correct in submitting that street to street deliveries of postal articles, as opposed to door-to-door pick up and delivery services, fall outside the services which are lawfully required to be provided by a courier service.'

[7] The central issue raised on appeal is whether Fitzgerald AJ was correct in finding that the appellant was not to be regarded as providing a ‘courier service’ within the meaning of the Act to the extent that it delivered postal articles to street addresses as opposed to making 'door to door' deliveries.

[8] Schedule 2 of the Act, which is headed ‘unreserved postal services’, deals (in its amended form) with ‘courier services’ as follows-

(a) all letters, postcards, printed matter, small parcels and other postal articles that fall outside the ambit of the reserved services set out in Schedule 1 up to and including thirty kilograms;

(c) any other postal service that falls outside the ambit of the reserved services as set out in Schedule 1’ (underlining supplied).

In terms of item 1 of Schedule 1 (as amended) 'reserved postal services' include-

‘(a) all letters, postcards, printed matter, small parcels and other postal articles subject to the mass or size limitations set out in item 3;

'2. For purposes of this Schedule, a letter means any form of written communication or other document, article or object that is directed to a specific person or persons or specific address and is to be conveyed other than by electronic means and includes a parcel, package or wrapper containing any such communication or article conforming to the mass or size limitations set out in item 3.'

'The reserved postal services include all items described in items 1(a) and 2 of a mass up to and including one kilogram or size which enables it to fit into a rectangular box with the following dimensions:

Cylinders having a maximum length of 458 mm and 100 mm thickness and or a mass of up to one kilogram are regarded as letters.'

Item 4 of Schedule 1 sets out exemptions from letter mail, which are not subject to licensing in terms of the Act. These exemptions are not relevant for present purposes.

[9] The Act defines 'courier service' in s 1 as meaning 'a service provided by a person licensed or registered to provide such a service in terms of this Act.' This definition affords no assistance in determining what is embraced in a 'courier service'.

[10] Before this Court, counsel for the respondent submitted that it is plain from a reading of the Act as a whole that a distinction is drawn between a 'reserved postal service' and a 'courier' service' and that, in counsel's words, 'never the twain shall meet'. Counsel conceded that this distinction was essential to his argument. Indeed it is, for without it, counsel could not go on to submit, as he did, that whatever the ambit of a courier service may be, street deliveries are a 'reserved postal service' which only the postal company can perform.

[11] Counsel's cardinal submission is not correct. Section 16(5)(a) expressly and in terms contemplates that a person shall be regarded as licensed to provide a courier service 'of a type contemplated in Schedule 1' which, it is apparent (as both counsel conceded), must mean 'in respect of' or 'in regard to' the items specified in Schedule 1. Item 1 refers to 'letters, postcards, printed matter, small parcels and other postal articles subject to the mass or size limitation set out item 3' and item 2 defines a 'letter' as 'any form of written communication or other document, article or object that is directed to a specific person or persons or specific address...' Section 16(5)(a) therefore contemplates a 'courier service' including delivery of letters etc – precisely the reserved postal service which Fitzgerald AJ held was reserved to the respondent.

[12] The same subsection ─ ss 5(a) ─ makes the deeming provision, which it embodies 'subject to paragraph (b)'. It does not make the deeming provision subject to pararagraph (d). Paragraph (d) requires undertakings by a person who is to be issued with a licence. It is of no assistance in interpreting what is meant by a courier service for the purposes of s 5(a). It is a regulatory provision, which deals with the future ─ not the past. Had the Legislature intended that it was only a person who had, before the commencement of the Act, performed the services in paragraph (d) who would be deemed to perform courier services in respect of reserved postal articles, it would have made the deeming provision in paragraph (a) subject to this condition also. It did not do so. The reason is that the Legislature recognised that couriers were illegally performing reserved postal services and intended to allow them to do so legally in the future, provided certain undertakings were given. Those undertakings were to be a condition for the issue of the license ─ not a condition for the person to be recognised as having provided a courier service as at the date of commencement of the Act. Furthermore it is to my mind significant that not even in s 16(5)(d) did the Legislature require an applicant for a license to undertake to perform a door-to-door delivery service only. But even if regard is had to s 16(5)(d) the words ‘deliver’ and ‘delivery’ used in section 16(5)(d) are not, as pointed out by the learned judge a quo, defined. There is in my view no sound justification for giving the words read in conjunction with the words 'courier service', the narrow meaning given to them by Fitzgerald J so as to exclude deliveries to street addresses in the sense understood by the court a quo. To my mind the ordinary meaning of the words 'deliver' and 'delivery' in the context of a courier service is not to be disturbed. The South African Concise Oxford Dictionary gives as one of the meanings of the verb ‘deliver’ - to ‘bring and hand over (a letter or goods) to the appropriate recipient’ and the noun ‘delivery’ as inter alia ‘the act in of delivering something, especially letters, goods or services.’ The Encarta World English Dictionary defines ‘delivery’ in relation to mail as the ‘the carrying of sth [something] to a particular person or to a particular address’. It is in this ordinary sense that the words are used in the Act.

[13] I find nothing in the scheme or wording of the Act which supports the restrictive interpretation given to the phrase ‘courier service’ by the court a quo. On the contrary, if one has proper regard to the ordinary meaning of the words, with reference to the context in which they are used as set forth in various dictionaries, I see no legitimate basis for excluding street deliveries of postal items from the operation of a ‘courier service’ as contemplated in the Act. As pointed out by Kotze JA in Association of Amusement and Novelty Machine Operators and Another v Minister of Justice and Another^⁶

‘The normal and permissible method available to a court to ascertain the ordinary meaning of words is to turn to authoritative dictionaries – the most reliable sources of information in regard to the general accepted usage of words - for aid.'

Amongst such authoratative dictionaries one may usefully refer to the South African Oxford English Dictionary^⁷ where the meaning of the word ‘courier’ is given as ‘A messenger who transports goods or documents in haste’. Black’s Law Dictionary^⁸ gives the following as the meaning of the word ‘courier’- ‘A messenger esp. one who delivers parcels, packages, and the like’. The Encarta World English Dictionary^⁹ defines the word ‘courier’ as follows- ‘A person or company that delivers documents or small and valuable packages by hand’. No dictionary to which I have had regard contemplates delivery to a person as a characteristic, much less an essential characteristic, of the service provided by a courier. There are many reasons why a person would employ a courier, other than the added security which person to person delivery, if offered by such a courier, affords. Two that immediately spring to mind are speed and reliability of the service offered. Neither of these excludes street to street deliveries.

[14] Accordingly, the words 'deliver', 'delivery', and ‘courier service’ are to be given their ordinary natural grammatical meaning in their context in the Act. This is so because no special meaning is indicated, and this would also accord with trite principle of giving effect to the intention of the Legislature as evidenced by the words it uses, read in their ‘ordinary sense’ and in context. (See for example, Venter v R^¹⁰, Union Government (Minister of Finance) v Mack^¹¹, Bhyat v Commissioner for Immigration^¹²).

[15] The respondent submitted that it was proper for Fitzgerald AJ to have had regard to the meaning ‘in the trade’ of the term ‘courier’ (Cf Kommissaris Van Doeane en Aksyns v Mincer Motors Bpk^¹³). Reliance was placed upon extracts from written submissions made to Parliament on behalf of 23 members of the Express Courier Industry prior to the Act being assented to on 20 March 1998. I immediately point out that the appellant states that the respondent has not shown that the interpretation given by the 23 members is accepted by the majority of the members of the industry and that some 304 other known providers of courier services were not represented in the written representations in question. This statement is not challenged by the respondent. But that apart, as a general rule, statutes are addressed to the general public and not to a particular trade or section of the community. Furthermore courts are reluctant to draw the conclusion that words and expressions in a statute are used in a technical sense (Association of Amusement and Novelty Machine Operators)^¹⁴.

[16] The deponent to the respondent’s supplementary founding affidavit (Mr P F Swart)^¹⁵, ‘without attempting an all encompassing definition’, submits that, ‘the following characteristics are the minimum elements which must be present before a postal service provider will be categorised as a courier service by the postal industry:

36.1 Door-to-door collection and delivery (as opposed to street delivery to mail boxes). This would include collecting the item from a particular person and delivering it in the hands of another.

36.2 A track and trace system, of which the most important components are proof of delivery and the ability to determine the whereabouts of a postal article at any given time.

36.3 The delivery of documents and parcels (as opposed to ordinary letter mail or business accounts).

36.4 Express delivery within a guaranteed time frame and which is faster than ordinary mail via the post office.

36.5 Value-added service, referring in fact to all of the above services in respect of which the customer pays a premium (i.e. above ordinary mail tariffs).'

[17] The appellant in its answering affidavit deposed to by its chief executive officer Mr J C Wessels^¹⁶ denies that a ‘courier service’ provider must at least have the characteristics listed by Swart in order to qualify as a courier for the purposes of the Act and submits that the Legislature ‘clearly intended not to assign a particular, technical meaning to the term ‘courier service’ and it must be therefore be accorded its ordinary, grammatical meaning.’

[18] There is thus an obvious dispute of fact on the papers as to the proper meaning of the words ‘courier service’ in the industry. But in any event I am of the view that the evidence of the 23 members of the Express Carrier Industry is irrelevant and inadmissible to determine the meaning of the concept 'courier service' in the Act. This is so since I do not believe that the words are used in the Act in any technical or special sense. The following remarks of Steyn CJ in Kommissaris van Doeane en Aksyns v Mincer Motors Bpk^¹⁷ are instructive in this regard:

‘Die eerste vraag is wat onder "motorkarre" in hierdie item verstaan moet word. Die appellant beroep hom op die reël dat waar 'n Wet vir 'n bepaalde bedryf bedoel is, hy uitgelê moet word volgens die betekenis wat die woorde in daardie bedryf het, en beweer dan dat hierdie item bedoel is vir die motorbedryf, dat die woord "motorkar" in daardie bedryf 'n spesiale betekenis het wat 'n afleweringswa van die onderhawige soort sou insluit, dat die Parlement die woord in bedoelde sin gebruik het, en dat hy toegelaat moet word om die aangevoerde betekenis met getuienis te staaf. Na my mening gaan hierdie redenasie nie op nie. Genoemde reël sou geld waar 'n woord of uitdrukking in 'n bepaalde bedryf of sake-afdeling algemeen in 'n besondere sin verstaan word deur die persone wat met die bedryf of sake-afdeling en die daarin erkende taalgebruik vertroud is, en waar dit blyk dat die Wetgewer die woord of uitdrukking in daardie sin gebesig het. Die aanwending van die reël stuit in die huidige geval teen verskillende moeilikhede.'

[19] Insofar as the submissions made to Parliament may be regarded as part of the legislative history of the Act, they would, on the basis of ‘the approach adopted by South African courts for more than a century'^¹⁸, be inadmissible. (See for example Mathiba and Others v Moschke^¹⁹, Mavromati v Union Exploration Import (Pty) Ltd^²⁰ and S v M en Andere^²¹.) In any event it is significant that in defining 'courier service' in the circuitous manner that it did in s1 of the Act, the Legislature appears not to have had regard to the submissions made by certain members of the Express Carrier Industry in formulating a definition, which accorded with their submissions.

[20] I do not accept the reasoning of Fitzgerald AJ that it is ‘the obvious intention of the of the Act’ to ‘preserve the statutory monopoly of’ the applicant, to permit of street deliveries of postal articles. I believe that there is substance in the contention advanced in the appellant’s heads of argument to the effect that the intention underlying the inclusion of s16 was to permit persons to provide a service complementary to, and in competition with that of the Post Office thereby recognising the advantages of private enterprise and the constitutional right of individuals to choose a trade occupation or profession.^²² The balancing of interests of the respondent, couriers such as the applicant and the general public was achieved by the prescription of terms and conditions in the granting of licenses to be issued to persons who had previously carried on the business of couriers prior to the enactment of the Act. I also agree with the appellant’s contention that the effect of the judgment of the court a quo would to a large extent close the window of opportunity afforded by s 16 of the Act to the appellant.

[21] In all of the circumstances I am of the view that the court a quo erred in concluding that street deliveries of postal articles, as opposed to door-to-door pickup and delivery services, fall outside the services, which may lawfully be provided by a courier.

[22] I have had the benefit of reading the judgments of my learned brothers Marais and Cloete JJA. I respectfully disagree with Marais JA's view as to the fate of the appeal. I concur in the judgment of Cloete JA.

[23] In my view the appellant should succeed in the point it raised on appeal and should accordingly be awarded the costs of the appeal. That success cannot, however, carry the costs of the proceedings in the court a quo as the respondent succeeded in obtaining the interdict embodied in paragraph 3 of the Court's order,^²³ against which there was no appeal. The third and fourth respondents in the Court a quo did not appeal against paragraph 2 of the order and it cannot be altered by this Court insofar as they are concerned. I would accordingly uphold the appeal with costs and alter paragraph 2 of the order of the Court a quo so as to delete the reference to the appellant (the first respondent a quo).

15 Swart is a senior manager, postal distribution of the respondent in the Western Cape and

describes himself as 'someone who has been closely involved in the postal industry for more than 7 years'.

21 1949 (4) SA 917 (A) at 927

1979 (4) SA 1044 (BH) at 1048 A-C

The law appears to be developing slowly to allow some regard to be had to the legislative history of unclear legislation ─ see the (separate concurring) judgment of Mokgoro J in Case and Another v Minister of Safety and Security and Others Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC) at 624-5 paragraph 12, note 18; see also S v Makwanyane and Another 1995 (3) SA 391 at 404 – 5 paragraphs 12 – 15; even then the stage has not been reached where regard may be had to submissions made by certain interested parties as opposed to statements of a Minister introducing a Bill in Parliament.

South Africa: Supreme Court of Appeal