Aluchem (Pty) Ltd and Another v Minister of Mineral and Energy Affairs and Others

• Jurisdiction: South Africa
• Judge: Mccreath J
• Judgment Date: 16 April 1985
• Court: Transvaal Provincial Division
• Hearing Date: 26 February 1985

McCreath J:

The applicants in this matter carry on business as F coal merchants in association with each other. Permission for the sale of coal had previously been granted to the applicants in terms of Government Notice R895 dated 29 April 1983. On 12 October 1984 Government Notice 2241 was promulgated. In terms G thereof all "authorities" issued under Notice R895 were withdrawn with effect from 1 November 1984 and no person was entitled to sell coal unless authorised in writing by the second respondent or an official of the Department of Mineral and Energy Affairs appointed by him for that purpose. The applicants sought, but did not obtain, the authority to which H they considered they were entitled. Hence the present application, which is for an order declaring Government Notice 2241 to be ultra vires and, in the alternative, for certain other relief. The applicants contend that it has always been their attitude that the said Notice is invalid, but that, had the authority sought by them been forthcoming, they would have been prepared to abide thereby and thus avoid any necessity for I litigation.

Government Notice 2241 was promulgated in terms of s 9 of the Price Control Act 25 of 1964 (the Act). The said section is headed "Certain conditional sales or the rendering of services on certain conditions may be prohibited" and ss (1) thereof provides as follows:

"The controller may from time to time by notice in the Gazette or, with the authority of the Minister, in the case of any J particular person, by notice in writing

McCreath J

A prohibit the sale of any goods or the rendering of any service subject to conditions specified in the notice, or the refusal to sell any goods or render any service except subject to conditions so specified or impose in respect of the sale of any goods or the rendering of any service such conditions as he may think fit, whether the maximum price for the sale of such goods or the maximum charge for the rendering of such services has been fixed under this Act or not."

The controller to whom reference is made is the Price B Controller appointed under s 2 of the Act, namely the third respondent in the present application.

What is relevant for purposes of the present application is what powers are conferred on the third respondent in terms of s 9 (1), firstly to prohibit the sale of goods, and secondly, to C impose such conditions as he may think fit in respect of the sale of any goods.

It was submitted on behalf of the respondents that ss (1) aforesaid empowers the third respondent to prohibit the sale of any goods, such prohibition to be "subject to conditions specified in the Notice " - in other words, that this clause D in the said subsection qualifies the verb "prohibit" and not the sale of any goods or the rendering of any service. In my view this contention is untenable. Such an interpretation would render the sentence in which the clause appears grammatically cumbersome and semantically obscure. Linguistically one would have expected any such qualification of the word "prohibit" to appear in closer proximity to the word it was intended to E qualify; as far as the meaning of the relevant portion of the subsection is concerned, it is difficult to conceive precisely what is intended by an act of prohibiting "subject to conditions". It is, I think, clear that the word "condition" in the clause under consideration is used in the sense of a "term" or "stipulation". This meaning was given to the word in the F case of S v H Friedman Motors (Pty) Ltd and Another 1972 (3) SA 421 (A) where it appeared in the definition of a money-lending transaction in s 1 of Act 73 of 1968. At 425H - 426A of the report the following is said:

"Although the word 'condition' is generally defined in the Oxford English Dictionary as -

'something that must exist or be present if something else G is to be or take place; that on which anything is contingent; a prerequisite',

or as a provision on which the legal force or effect of a contract or other legal document is made to depend, it is clear, as it was indeed conceded by counsel, that it is not in that narrow sense in which it is used in the concluding part of the definition of 'money lending transaction', but in the wider sense of a 'term' or 'stipulation' in a contract."

H In my opinion, the prohibition envisaged in ss (1) of s 9 is in respect of sales which are subject to such conditions as may be specified in the relevant notice or the rendition of services which are subject to conditions thus specified. Such interpretation is in conformity with the heading to s 9 which I have already quoted. It is also consistent with the further provisions in that subsection to the effect that the third I respondent may prohibit the refusal to sell any goods or render any service except subject to conditions specified by notice. It is apparent that the conditions to which reference here is made are conditions to which the sale of any goods or the rendering of any service is subject, and not conditions to which the refusal so to sell or to render services is subject. Moreover, there are other provisions in Act 25 of 1964 which J lend support to this view. Subsection (3) of s 9 reads as follows:

McCreath J

"Without prejudice to the generality of the powers conferred on A the controller by ss (1), he may under that subsection by notice in the Gazette or, with the authority of the Minister, in the case of any particular person, by notice in writing, prohibit the sale of goods subject to conditions in terms of which, if the purchase price or other consideration is payable by instalments...