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323/J39

PUBLIC CARRIERS ASSOCIATION & OTHERS

versus

TOLL ROAD CONCESSIONARIES (PROPRIETARY) LIMITED & OTHERS

NICHOLAS A J A

323/89 WHN

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

PUBLIC CARRIERS ASSOCIATION First Appellant
HULTRANS (PROPRIETARY) LIMITED Second Appellant
CARGO CARRIERS LIMITED Third Appellant
TANKER SERVICES (PROPRIETARY)
LIMITED Fourth Appellant

MAINLINE CARRIERS (PROPRIETARY)
LIMITED Fifth Appellant
and
TOLL ROAD CONCESSIONARIES

(PROPRIETARY) LIMITED First Respondent

THE GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA Second Respondent
THE NATIONAL TRANSPORT COMMISSION Third Respondent
MINISTER OF TRANSPORT Fourth Respondent
CORAM: JOUBERT, SMALBERGER, STEYN,

F H GROSSKOPF, JJA, et NICHOLAS, AJA

HEARD: 2 NOVEMBER 1989 DELIVERED: 30 November 1989

JUDGMENT NICHOLAS A J A

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I have had the privilege of reading the judgment prepared by SMALBERGER J A. Generally I am in agreement with his reasons for judgment, but I disagree in regard to the third question and would in consequence make an order on the appeal which differs from that proposed by him.
In terms of s 9(1) of the National Roads Act, 54 of 1971 ("the Act"),

"9(1) The (National Transport Commission) may

(a) subject to subsection (3), declare

any bridge or tunnel on, or any portion of, a national road, as a toll road;
(b) in respect of the use of any vehicle
on a toll road, levy a toll the amount
of which has been determined and
made known in terms of subsection (4) and which shall be payable by the person so using the vehicle;

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(c)	collect moneys payable as toll on a toll road, and for that purpose erect a toll gate or toll gates and facilities in connection therewith on the toll road;
(d)	grant exemption from the payment of toll on a particular toll road-

(i) in respect of a vehicle of a category determined by the commission, or in respect of any such vehicle used on the toll road, at a time so determined; or

(ii) to a person of a category

determined by the commission, irrespective of the vehicle used by such person on the toll road, or to any such person using a vehicle on the toll road at a time so determined,

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and withdraw any such exemption;

(e)	restrict the levying of toll on a particular toll road to the hours or other times détermined by the commission;
(f)	suspend the levying of toll on a

particular toll road for a specified or an unspecified period and in respect of all vehicles or in respect of vehicles of a category determined by the commission, and resume the levying after a suspension."

S 9(4) provides:

"(4) The amount of a toll levied under subsection (1), and any alteration thereof -

(a)	shail be determined by the Minister on the recommendation of the commission;
(b)	may differ in respect of -

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(i) different toll roads;

(ii) different vehicles or different categories of vehicles used on a toll road; (iii) different times at which

any vehicle or any vehicle of a particular category is used on a toll road;

(c)	shall be made known by notice in the Gazette;
(d)	shall be payable from a date determined by the Minister on the recommendation of the commission, which shall be mentioned in the notice whereby it is made known in terms of paragraph (c)

and which shall not be a date earlier than 60 days after the date on which such notice appears in the Gazette."

Government Notice No 1875 dated 16 September 1988 read as

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follows:

"NATIONAL ROADS ACT, 1971 (ACT 54 OF 1971),

AS AMENDED EXTENSION OF TUGELA TOLL ROAD.- PUBLICATION OF THE AMOUNTS OF TOLL FOR THE VARIOUS CATEGORIES OF MOTOR VEHICLES, THE TIMES AT WHICH THE TOLL ROAD MAY BE USED AND THE DATE ON AND TIME AT WHICH THE TARIFFS SHALL BECOME PAYABLE.

The National Transport Commission hereby, in terms of section 9(4)(c) of the National . Roads Act, 1971 (Act 54 of 1971), as amended, makes known that the amounts of toll which it may levy under section 9(1)(b) of the said Act have been determined by the Minister of Transport Affairs under section 9(4)(a) thereof and that, the said amounts shall be levied under section 9(4)(b) (ii) and (iii) and 9(4)(d) thereof, as set out in the Schedule hereto. R. G. MEYER, Chairman: National Transport Commission."

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Paragraph 3 of the Schedule to the Notice read:

"3. AMOUNTS OF TOLL 3.1 The amount of toll payable over the full distance of the toll road between the Frere Interchange and the Cedara Interchange near Hilton in respect of various motor vehicle classes shall not exceed the following:

Class 1: R10,00
Class 2: R12,00
Class 3: R18,00
Class 4: R22,00
Class 5: R26,00
Class 6: R30,00
"

(My underlining).

The short question is whether the Minister
made an effective determination of the amounts of the toll.

It was contended on behalf of the appellants

that the Minister did not make an effective determination.

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In respect of each class of vehicle the Minister only assessed a maximum figure payable, thereby merely setting the range or the upper limit, whereas s 9(4) required him to set specific tolls fixing the actual amounts payable.
The starting-point in an examination of the question is the meaning of the word determined as used in s 9(4) and s 9(1)(b). For the reasons given by my learned colleague in his judgment, I have no doubt that it means decide or fix, and does not mean set bounds to, as decided
by COMBRINK J in the judgment a quo.

In considering the soundness of the

appellants contention regard must be had to the purpose of s 9(4).
A toll is a tax paid for the use of a public road. It is levied on the user of the toll road and collected by the commission. Under s 2(1)(bA) of the

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Act, all money paid by way of toll in terms of s 9 must
be paid into the National Road Fund. The commission has not
been left free to exact whatever toll it pleases. The

legislature has made the toll a matter of ministeriai
responsibility, no doubt in order that the Minister should
hold the balance between the needs of the commission and the

interests of the public. Under the Act the power to determine
a toll has been conferred on the Minister, who will have
regard, presumably, to the costs, expenses and commitments
of the commission, and the benefits and savings to be derived
by the user of the toll road. The primary object is to

safeguard the public against arbitrary and excessive imposts,

by ensuring that the road-user is charged no more than the
amount which the Minister considers to be fair. It is not
to prevent the road-user from being charged less than that
amount.

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In terms of s 9(1)(c) of the Act, the
commission may "collect moneys payable as toll on a toll road" (that is, toll in the amount determined under s 9(4)). This is a permissive power: the commission is entitled to collect toll in that amount but it is not under a statutory duty to do so. That is clear from s 9(1)(d), in terms of which the commission is empowered "to grant exemption from the payment of toll on a particular toll road", and from s 9(1)(f) in terms of which it is empowered to "suspend the
levying of toll on a particular road".

If the words which I underlined in quoting

from the Schedule to the Government Notice had read "shall

be the following" there could have been no doubt that the
Minister had made an effective determination of the amount
of toll. I do not think that the use of the words "shall
not exceed the following" alters that position. It did no

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more than make explicit what was in any event implicit without them, namely that a lesser amount could be collected by the commission than was stated in the notice.
I do not think, with respect to my learned colleague, that this view of the matter is affected by the provisions of s 9(4)(a) or s 9(4)(d).
Under s 9(4)(a) any alteration of a toll shall be determined by the Minister. This connotes an alteration of a toll previously determined, and does not
bear on what was required of the previous determination.

In terms of s 9(4)(d) at least 60 days

must elapse between the date of the notice and the date when a toll becomes payable. I do not agree that the purpose of this is to allow for representations to be made to the Minister. There is nothing in the provision to suggest that, having made a determination, the Minister would be

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open to representations before it comes into effect. Nor do I agree that the requirement of the 60 day period is to enable persons to arrange their affairs in advance with due regard to the amount of toll they will be required to pay. I cannot conceive that any such arrangements could be upset by a reduction in the amount payable below that set out in the notice.

The point made by the appellants is at best highly technical: a charge of less than thé amount fixed by the Minister can only redound to the benefit of toll-road users, and in particular hauliers such as the appellants; and a holding that the Minister's determination is ineffective can only result in general confusion and serious financial loss, without any advantage (other than merely a temporary one) to anybody. If the determination were to be set aside,

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the Minister could immediately make a fresh determination stating that the amount of toll payable "shall be the following" without alteration of the amounts. This could be brought into effect from a date fixed in terms of s 9(4)(d) of the Act. Matters would then go on as they are at present.
The fact that the point is technical is not, of course, in itself a reason why it should not be sound. In my opinion, however, it is unsound, and its unsoundness is illustrated by the practical results if effect were to be given to it.

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I would make the following order: The appeal is dismissed with costs,

including in respect of each of the respondents the costs
of two counsel.

H C NICHOLAS AJA.

JOUBERT JA ) Concur F H GROSSKOPF JA)

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