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[1989] ZASCA 59
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Adampol (Pty) Ltd. v Administrator, Transvaal (661/87) [1989] ZASCA 59; [1989] 4 All SA 776 (AD) (22 May 1989)
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Case No.: 661/87
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
ADAMPOL (PTY) LTD Appellant
and
THE ADMINISTRATOR OF THE TRANSVAAL Respondent
CORAM: JOUBERT, HOEXTER, BOTHA, VIVIER et EKSTEEN, JJA
HEARD: 21 February, 1989 DELIVERED: 22 May 1989
JUDGMENT
HOEXTER, JA
2
HOEXTER, JA
I have had the benefit of reading the judgments
respectively prepared by my Brother
JOUBERT and my Brother
BOTHA. I agree with the view expressed in the
penultimate paragraph of the latter judgment that the decisive question in the
appeal
is whether or not sec 95A reveals a clear intention on the part of the
legislature that its provisions should apply to expropriations
that have taken
place before its enactment. My Brother BOTHA concludes that no such clear
intention is revealed. I would, with deference,
disagree with that conclusion.
In my opinion the meaning which the appellant's counsel seeks to assign to sec
95A is the correct
one. For the following reasons I agree with the orders set
forth in the concluding paragraphs of the judgment of my Brother JOUBERTL
What VAN DER MERWE, J conceived to be the initial
inquiry
3
inquiry in the problem of interpretation confronting
him appears from the
following passage in the judgment
of the Court below:-
"The first question that must be answered,
is the following. If interest is
payable to an expropriatee prior to 25 September 1985, does it mean that the sec-tion will have retrospective effect?"
I venture
to suggest that the first question which fell
to be answered was rather this
: What is the ordinary
grammatical meaning of the words of the section?
If
such a meaning is apparent, and if it produces no obvious
absurdity,
repugnance or inconsistency, the inquiry ends
there. The paramount principle,
as has often been
stated, is construction according to the plain
import
and effect of the words. In cases of ambiguity certain
presumptions
may be called in aid. One of them is the
presumption
4
presumption against the restrospective operation of
statutes. Legislation which is truly retrospective, and
which operates
ex post facto, may in some cases run
counter to natural justice; and
where there is ambiguity
the presumption against retrospective operation is
a
strong one. The fact remains, however, that presumptions -
whether they be
weak or strong - have a purely auxiliary
function; and they may be invoked in the process of
interpretation only if the language in question is not
clear. In Parow
Municipality v Joyce and McGregor (Pty) Ltd
1974(1) SA 161 (C) VAN WINSEN, AJP observed (at 165H/166A) -
"However, these rules of statutory exegesis are intended as aids in resolving any doubts as to the legislature's true intention. Where this intention is proclaimed in clear terms either expressly or by necessary implication the assistance of these rules need not be sought. Steyn in his work on Uitleq van Wette, 3rd ed., p. 2, states the position thus:
'......'n....
5
' 'n reël waaraan alle ander
reëls ondergeskik is, naamlik dat indien maar eenmaal vasstaan wat die werklike bedoeling is wat die woorde wil uitdruk, aan daardie uitleg gevolg gegee moet word.'"
In his judgment my Brother JOUBERT holds that
the
wording of sec 95A(1) is clear and unambiguous;
and that the ordinary meaning
of the words used involves
no manifest absurdity, inconsistency or hardship.
I
arrive at the same conclusion. When one heeds and gives
natural effect
to the exact words of the section they sig-
nify, I think, that interest will
be paid to an expro-
priatee:-
(a) calculated at the rate and in the fashion indicated in the section; (b) on any amount of compensation under sec 92 which on or after 25 September 1985 is payable but unpaid;
(c) in
6
(c) in respect of an expropriation under
Ordinance 22 of 1957.
Counsel for the respondent invites us to read the
section
as if, after the words:
"...on any outstanding amount of the compen-sation payable in terms of section 92...."
there should be slipped in, by implication, words having
the following effect:
" pursuant to a notice contemplated
in subsection (1) of the latter section promulgated after the coming into effect of this section."
I confess that I am guite unable
to see any reason for so
tinkering with the express words
actúallý used by the
legislature. In my judgment the words of
the. section
are too plain and clear to admit of any such
implication,
which is negatived by the use of the word "any"
which
prefaces the words "outstanding amount."
Any
7
Any speculation as to the inscrutable workings of the legislative mind which is divorced from the actual words of the statutory provision in question does not appear to me to be particularly helpful. In the instant case it is said, for example, that in enacting sec 95A(1) the primary purpose of the legislature must have been to make provision for the payment of interest on amounts of compensation payable but outstanding in respect of ex-propriations taking place after the date on which the section came into operation. That conjecture may be sound. There are no less cogent grounds, I think, for another surmise. It seems to me to be reasonable to suppose that the legislature was mindful of the long delays which in practice frequently separate the date of expro-priation and the date of payment of compensation; and that the legislature's use of words of unqualified gene-
rality......
8
rality ("any outstanding amount") was prompted by a firm intention to help
not only future expropriatees but also
those to whom, at the date of the
enactment, compensation
had not yet been paid.
For the above reasons I
come to the conclusion that the Court below erred in deciding the stated case in
favour of the respondent.
In my judgment the words of sec 95A(1) in their
ordinary meaning are conclusive: and they apply clearly and directly also to
outstanding
amounts payable in respect of expropriations preceding the date on
which the section came into operation.
This conclusion renders it unnecessary
for me to express any firm opinion on the issue, much debated both in the Court
below and on
appeal, whether according to the construction for which the
appellant contends the section operates with retrospective effect. I
wish to
say,
9
say, nevertheless, that in my view that guestion should be answered in the
negative.
The basis of the decision made by VAN DER MERWE, J in favour of the
respondent was a finding that the construc-tion proffered by the
appellant did
in fact involve retro-spective operation; and, since the language of the section
indicated neither expressly or by
implication that there should be retrospective
operation, that the presumption against retrospectivity had not been
displaced.
In regard to the issue of retrospectivity the
test applied by VAN DER MERWE, J was the following:-
"The Ordinance will, in my opinion, be retrospective if it provides that as at a date prior to 25 September 1985 the law shall be taken to have been that which it was not."
The learned Judge was satisfied that
the question indi-
cated above should be answered in the affirmative. For
the
10
the reasons briefly stated hereafter it seems to me,
with respect, that
the test used by the learned Judge
should have yielded a negative result.
The test applied by VAN DER MERWE, J is one formu-
lated in the oft-quoted judgment of BUCKLEY, LJ in the
case of West v
Gwynne (1911) 2 Ch. 1 at 11/12:-
"Retrospective operation is one matter. Interference with existing rights is another. If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospec-tive. That is not this case. The question here is whether a certain pro-vision as to the contents of leases is addressed to the case of all leases or only of some, namely, leases executed after the passing of the Act. The question is as to the ambit and scope of the Act, and not as to the date as from which the new law, as enacted by the Act, is to be taken to have been the law."
It seems to me that in the instant case too the essential
inquiry.....
11
inquiry relates to the ambit of sec 95A(1) rather than to retrospectivity in
the true sense of the word. The provisions of sec 95A(1)
decreeing the payment
of interest on outstanding amounts are not foredated to a time earlier than 25
September 1985 : they govern
the payment of interest only on amounts outstanding
on and after that date.
The distinction between retrospective operation and
interference with existing rights is neatly illustrated by the situation with
which the Court in Parow Municipality v Joyce and McGreqor (Pty) Ltd.
(supra) had to deal. In that case the respondent was a property-owning
development company. In 1932 it had submitted and received approval
for a plan
of sub-division of land which included an area desig-nated as "recreation
ground". Subsequently thereto sec 127 of the
Cape Municipal Ordinance 19 of 1951
provided:-
"The
12
"The ownership of all immovable property
to which the inhabitants of the municipa-
lity shall have or acquire a common right
and of all public streets and the land
comprised therein shall vest in the muni-
cipality; "
In an application by the Parow
Municipality for an order
compelling the respondent to transfer the aforesaid
re-
creation ground to the Municipality, the Court held that
the
recreation ground was a public street within the
meaning of sec 127, and that
sec 127 had vested the owner-
ship thereof in the Municipality. In arriving
at this
conclusion VAN WINSEN, AJP, rejected the respondent's
contention
that if the ownership of the recreation ground
were to vest in the
Municipality sec 127 would be opera-
ting retrospectively. The Court pointed
out that
although sec 127 interfered with existing rights, ownership
of
the ground in question vested in the Municipality only
from
13
from the date of promulgation of sec 127. At 164G/165C
VAN WINSEN, AJP remarked:-
"The section applies to a state of affairs existing at its inception, viz., that a certain area of land shewn upon an approved sub-division plan comprises a public street. The fact that the afore-mentioned requisites for its operation existed antecedent to the time when the section was promulgated does not in itself render it retrospective in its operation. Cf. R v St Mary, Whitechapel, 12 Q.B. 120 at p 127; Master Ladies Tailors Organisation v Minister of Labour, (1950) 2 All E R 525 at p 527; R. v A. Solicitor's Clerk, (1957) 1 W L R 1219. It would, in my view, have been retrospective in its operation if it had sought to provide that . as from a date anterior to its promulgation the local authority had become vested with ownership in what were then public streets. But this it does not do. The remarks of BUCKLEY, LJ in West v Gwynne, (1911) 2 CH. 1 at p 11, quoted with approval by SCHREINER, ACJ, in Shewan Tomes & Co Ltd v Commissioner of Customs & Excise, 1955(4) SA 305 (A D), are apposite in this connection. The learned Judge observed as follows:
'During the argument the words 'retrospective'
and
14
and 'retroactive' have been repeatedly
used, and the question has been stated
to be whether sec 3 of the Conveyancing
Act, 1892, is retrospective. To my mind
the word 'retrospective' is inappropriate,
and the question is not whether the sec-
tion is retrospective. Retrospective
operation is one matter. Interference
with existing rights is another
(In the rest of his quotation from the remarks of BUCKLEY, LJ in West v Gwynne (supra) VAN WINSEN, AJP cited the remainder of the passage already quoted earlier in this judgment. VAN WINSEN, AJP then proceeded as hereunder indica-ted).
"See, too Sarahbibi v Principal Immigration Officer, 1957 (2) SA 175 (N) at p 180; Scott v Artus, 1964(3) SA 384 (E) at p 388.
I conclude, therefore, that while it can bê conceded that sec 127 does, ás from the date of its promulgation, interfere with existing rights it does not operate retrospectively."
It seems to me,
with respect, that in the above-quoted
passage VAN WINSEN, AJP correctly
stated the criterion to
be
15
be employed in cases of this sort, and I proceed to
apply it to the
situation in the instant case.
In providing what the law is to be with effect
from 25 September 1985 sec 95A(1) undoubtedly interfered with the existing
rights of
the parties to this appeal. Before that date the respondent bore no
obligation to pay interest on any outstanding amount of compensation
owing to
the appellant, and the latter enjoyed no right to claim such interest from the
former. That fact, by itself, does not render
the operation of sec 95A(1)
retrospective. Nor, in my opinion, is its operation rendered retrospective by
the adventitious circumstance
that the interest payable is to be computed from a
date which may precede (and which, in the instant case does precede) 25
September
1985. In my view that factor is one quite extraneous to the
inquiry.
Had....
16
Had sec 95A(1) provided for the payment of interest not only on amounts outstanding from the date on which it came into operation, but also on amounts outstanding for any period prior to 25 September 1985 and which had been paid in full to the expropriatee before that date, then its provisions would have satis-fied the criterion enunciated in West v Gwynne (supra) and applied in the Parow Municipality case (supra). It would then have decreed, ex post facto, the payment of interest in respect.of transactions wholly past and perfected. However, as already pointed out, the sec-tion does no such thing. It provides for the payment of interest only on amounts outstanding on and after 25 September 1985. Sec 95A(1) provides what the law is to be with effect from 25 September 1985. It does not provide that at a past date the law shall be taken '
to
17
to have been that which it was not. Reduced to essen-tials the contention
advanced on behalf of the respon-dent in the present case
(and the same may be
said of the respondent in the Parow Municipality case (supra))
really comes to this: that prior to the date of the amending enactment he
enjoyed a vested and entrenched right that in future
the law governing his
obligations would never be amended. That contention, is, I consider, an
untenable one.
I would allow the appeal. I concur in the orders proposed by
JOUBERT, JA.
G G HOEXTER, JA
VIVIER, JA )
EKSTEEN, JA ) Concur