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OF SOUTH AFRICA
Case number : 473/2001
In the matter between :
and
CORAM : MARAIS, ZULMAN, CAMERON, CLOETE and LEWIS JJA
HEARD : 17 MARCH 2003
DELIVERED : 27 MARCH 2003
Summary: The interpretation of s 16 of the Postal Service Act, 124 of 1998 in relation to the provision of a 'courier service'.
_________________________________________________________
CLOETE JA/
CLOETE JA :
[1] I have had the benefit of reading the judgments of my learned
colleagues Marais JA and Zulman JA. I respectfully agree with the latter and, with equal respect, find myself unable to agree with the former.
[2] A courier is 'a messenger who transports goods or documents'.1 To my mind the essential characteristic of a courier service is the right on the part of the customer to give directions to the courier. It is primarily the mandate given by the customer and accepted by the courier which dictates the service to be provided and which distinguishes a courier from what Marais JA terms a 'common or garden postman'. If the mandate is to make personal delivery to a specific addressee, then personal delivery must take place. The mandate can equally be to make delivery to a post box at a specific address. The evidence discloses that
the appellant is able to do either.
[3] Once it is accepted, as it is by Marais JA, that a courier may be engaged to deliver a letter or parcel to a particular place as opposed to a particular person (or such person's agent), what is characterised by my learned colleague as the 'critical element' of a courier service ─ delivery to a person ─ is lacking and it cannot accordingly be a critical element in the definition of a courier service.
[4] The fact that most of the appellant's customers choose street to street deliveries does not derogate from the fact that the appellant is subject to the directions of those who employ it. It is that characteristic, and not the scale of the appellant's street to street deliveries, which is decisive. Furthermore the fact that a letter will lie on the floor or in a letterbox at its destination until someone picks it up does not to my mind mean that it could not have been couriered there. As Zulman JA points out, a courier service is not necessarily employed only because of the added security which person to person delivery affords.
[5] I have been unable to find in any dictionary which I have consulted2 and I am unable to discern in the Act itself, any requirement that delivery must be to a person before a service can be categorised as a courier service.
[6] So far as the Act is concerned, I am unable, with respect, to find any distinction in s 16, much less a distinction which lies at the heart of that section, between what Marais JA terms 'ordinary postal services' on the one hand, and a 'courier service', on the other. Subsection 4(a) provides:
'A reserved postal service of the postal company contemplated in this section, excluding a courier service in respect whereof the postal company must be licensed or registered separately, may be provided by a wholly-owned subsidiary of the postal
company, without such subsidiary being required to hold a licence in terms of this Act if . . .'
That subsection contemplates that a reserved postal service includes a courier service, otherwise it would not have been necessary for the legislature to exclude a courier service. In addition, subsection 5(a) provides:
'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 . . .'.
The type of service contemplated in Schedule 1 is 'reserved postal services'. A distinction between 'ordinary postal services' and courier services is not to be found in the Act itself. Indeed, the former concept nowhere appears in the Act. It is the consequence of an unwarranted definition of courier services not dictated by the Act. But perhaps the most telling feature of s 16 is that ss (5)(d) does not require a courier to undertake personal deliveries only, as a condition for being granted a licence. I do not interpret the 'track and trace' provision in s 16(5)(d)(ii) as impliedly importing such a requirement. The phrase is nowhere defined in the Act. The evidence shows that the service provided by the appellant enables the appellant to establish the whereabouts of an item entrusted to it at every stage from the time it is collected, up to and including the time of delivery at a street address. That in my view constitutes compliance with the section. In addition, should a customer require proof of delivery, the signature of a recipient will be obtained. If indeed all a licensed courier is permitted to do, is to make personal delivery, then this essential limitation would surely have been included in s 16(5)(d), in terms; but it is not.
[7] Section 16 of the Act clearly contemplates that couriers will compete with the postal company in the provision of reserved postal services. There is in my respectful view no basis, either on the ordinary meaning of the phrase 'courier service' or to be found in the scheme of the Act, for limiting that competition to person to person deliveries. And once it is plain, as it is from s 16 of the Act, that competition is to be allowed, it cannot be reasoned (as was done by the learned Judge in the Court a quo) that street deliveries must be excluded from courier services because this function was traditionally reserved for the postal company: the whole purpose of s 16 is to break that monopoly.
[8] I would accordingly uphold the appeal with costs and alter the order of the Court a quo as proposed by Zulman JA.
………………
T D CLOETE
JUDGE OF APPEAL
1 South African Concise Oxford Dictionary
2 The Oxford English Dictionary (2nd ed); The Shorter Oxford English Dictionary (3rd ed); The Concise Oxford Dictionary (6th ed); South African Concise Oxford Dictionary; Webster's Third New International Dictionary; Webster's Revised Unabridged Dictionary; The Imperial Dictionary of the English Language; The Universal English Dictionary; The American Heritage Dictionary of the English Language (4th ed); Encarta World English Dictionary; Merriam-Webster Dictionary; West's Legal Thesaurus/Dictionary; Black's Law Dictionary (7th ed); Butterworths Australian Legal Dictionary; and s.v. 'koerier', Woordeboek van die Afrikaanse Taal (Schoonees et al), Kernwoordeboek van Afrikaans (De Villiers, Smuts and Eksteen), HAT (4th ed), Afrikaanse Woordeboek (Terblanche and Odendaal) andVerklarende Afrikaanse Woordeboek (Labuschagne and Eksteen).
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.RTF of original document