Herman v Faclier

• Jurisdiction: South Africa
• Judge: De Villiers JP, Newton Thompson J and Herbstein J
• Judgment Date: 21 March 1949
• Citation: 1949 (4) SA 377 (C)
• Court: Cape Provincial Division

De Villiers, J.P.:

Towards the end of last year the Union Government established a measure of import control in relation to the importation of goods from non-sterling countries and to this end Exchange Quota Regulations were published on the 5th November, 1948. The object of the Regulations admittedly was to effect a drastic curtailment in the importation of goods from non-sterling areas. It seems clear from a scrutiny of the Regulations that the method employed was designed to give exchange facilities, though in a considerably reduced form, to persons who had been engaged in the importation of such goods in the past They were thus to be given some form of priority.

The yardstick decided upon was to grant certain exchange facilities to persons who had imported during 1947 and at the date of the issue of the Regulations required facilities to pay for goods supplied to them from non-sterling areas. All persons falling within the ambit of the yardstick employed were given the right to obtain exchange not in excess of fifty per cent. (50%) of the value of their importations during 1947. The use of the yardstick, however, left out of account all persons who did not fall within its terms and particularly persons who only imported

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subsequent to 1947. These persons are specifically dealt with in the Regulations. In addition to these two classes of persons, manufacturers or importers of capital goods who were not entitled to an exchange quota on the strength of their past importations, or who required additional exchange, were also catered for.

It seems clear from a scrutiny of the scope of the Regulations that the framers thereof envisaged a continuity in commercial operations involving the importation of goods from non-sterling areas. If I have correctly set out the intention of the framers of these Regulations and what substantially they had in mind, it is of importance for the purposes of this appeal to decide what meaning should be given to the term 'person' where it is used in Regs. 2 (a), 2 (b), 7 and 18. A limitation is necessarily introduced into the ambit of the term in Reg. 2 (a), for it clearly does not include every person. The person referred to must be (a) a person who wishes to pay for goods supplied (i.e. imported from non-sterling countries) and (b) who imported during 1947.

The first issue in the present appeal is whether the right to an exchange quota attaches to a person irrespective of any business carried on by him. Regs. 2 (a), 2 (b), 7 and 18, have been set out in extenso in the judgment of my Brother HERBSTEIN, and it is unnecessary to recapitulate them. It would appear that there are what may be described as two dominant Regulations. Reg. 2 provides for the case of persons who have been given what I have described as a priority, in regard to exchange quotas by reason of the fact that they fall within the ambit of the yardstick employed; while Reg. 18 provides for those cases which do not fall within the yardstick and sets out the procedure to be followed by a person falling within its terms.

Reg. 7 merely indicates the steps which a person who falls within Reg. 2 must take in order to secure the benefit conferred by that Regulation.

The appellant contends that the word 'person' must be given its ordinary natural meaning, unfettered by any considerations involving business operations. To put it in another way: he contends that the benefits of the exchange quota are not limited to persons engaged in a business.

Respondent contends, though Mr. Scnock did not put the contention precisely in this form, that exchange quota is confined for the purposes of these Regulations to persons who carry on business; in other words that the quota attaches to the person by virtue of the business carried on by him. With these two possible

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interpretations in mind, what is the construction to be placed upon the word 'person' in the Regulations? Under Reg. 2 (a) a person who has imported during 1947 and desires to pay for goods imported by him subsequently, is given an exchange quota not in excess of fifty per cent. (50%) of his 1947 importations. The first possible interpretation is that a 'person' includes one who imported privately without relation to any business carried on by him. Indeed, he may be a collector of pictures who had imported a picture from the United States in 1947 and has since imported another which he had not paid for before the issue of the Regulations. He, it may be contended, is entitled to exchange quota despite the fact that he was not engaged in any business. Such a person, however, would clearly not ordinarily fall within the term 'importer' although he did in fact import pictures on two occasions.

As a matter of English an 'importer' is one who indulges in commercial activities of a particular kind. (See Imperial Dictionary s.v. 'importer':

'one who imports: a merchant who by himself or his agent brings goods from another country or state.')

See also Shorter Oxford Dictionary;

'one who or that which imports or introduces: esp. a merchant who imports from abroad.'

The second possible interpretation of the word 'person' in this Regulation is that he is a person who imports, and has during 1947 imported goods from non-sterling areas for the purposes of his business. If the latter interpretation is what the Legislature had in mind, has it said so sufficiently clearly? The latter part of Reg 2 (a) may, when read with Reg. 18, afford some assistance as to the intention of the framers of the Regulations. Before dealing therewith, however, the meaning of Reg. 2 (b) falls to be considered, for it in terms grants an exemption to a person who falls under 2 (a). It provides expressly that for the purposes of computing his total importations during the calendar year 1947, no account is to be taken of his importation of machinery, plant or equipment, unless the importation of such goods is the normal business of such person. It may be urged that 2 (b) narrows the connotation of the term 'person' by restricting a person's quota to the normal business carried on by him. Hence, if such a person imported for his personal use - and quite apart from his business importations - a motorcar during 1947, the value of that car would not be taken into account qua exchange quota. Reg. 7 throws no particular light

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upon the question presently under consideration for it is really procedural in its nature, indicating the steps to be taken by a person who falls under Reg. 2 (a), to secure his quota.

Reg. 2 (a) in terms deals with the class of persons who on the strength of their 1947 importations have been given priority in respect of exchange quota. But what of the man who only imported - be it privately or for the purposes of his business - after the expiration of the period selected as the yardstick? His case is specifically dealt with under Reg. 18, which provides that he may submit a special application for a quota to the Secretary for Commerce and Industries who is given a discretion to grant him a quota. But who is this person? He is specifically described as a person 'who commenced business as an importer subsequent to the 1st January, 1947, and who is therefore not in a position to furnish the information referred to in Regs. 7 and 8'. If this language means anything it can only mean that such a person differs from the 'person' in Regs. 2 and 7 solely and only because he cannot furnish the information required by Regs. 7 and 8 which deal with the procedural machinery set up in the case of persons who fall under Reg. 2. Had he imported in 1947 he would have fallen under Reg. 2. In Reg. 18, however, the person to derive benefit from the procedure is specifically described as 'any person who commenced business as an importer'. It would follow therefore that under Reg. 18 the word 'person' has a restricted connotation, for special emphasis is laid on the date when he commenced business.

Reverting again to Reg. 2 (a), after dealing with persons who had imported during 1947, whose quotas were not in excess of fifty per cent. (50%) of their 1947 importations, it provides further 'or in excess of a quota or additional quota determined in respect of' such 'person' in accordance with the provisions of Regs. 18 or 19. 'Such' person in Reg. 2 (a) is the person desiring to pay for goods supplied from non-sterling areas, and he gets a quota not in excess of a quota determined under Reg. 18. Can it not fairly be said that not only Reg. 18, but both Regs. 2 and 18 were contemplating, for the purpose of exchange quotas, persons who carried on business, in the case of Reg. 2, during 1947, and in the case of Reg. 18, thereafter? Incidentally, it would appear that the date 1st January, 1947, in Reg. 18 is inserted in error for the 1st January, 1948.

The real distinction drawn by these two Regulations between the two 'persons' referred to may be said to relate to the period when

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they carried on, or commenced, business respectively. There are other indications, I do not put it very much higher than that, that the words 'persons' and 'businesses' are used indiscriminately in relation to the allocation of quotas. Reg. 10 has these concluding words:

'For the importation of machinery, equipment and raw materials required in the normal course of their business by mining and industrial undertakings, pending the issue of exchange quotas to the undertakings concerned.'

The Afrikaans version of Reg. 14 differs materially from the English, the differences being probably attributable to the haste and urgency attendant upon the issue of these Regulations. Act 9 of 1933 under which these Regulations were issued was signed in Afrikaans and consequently the Afrikaans version of the Regulations cannot be disregarded. It is to this effect:

'Kwotas mag slegs toegeken word aan persone of ondernemings vir wie se rekening ens . . .'

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