Hoban v Absa Bank Ltd t/a United Bank and Others

• Jurisdiction: South Africa
• Judgment Date: 19 March 1999
• Citation: 1999 (2) SA 1036 (SCA)

Hoban v Absa Bank Ltd t/a United Bank and Others
1999 (2) SA 1036 (SCA)

1999 (2) SA p1036

Citation	1999 (2) SA 1036 (SCA)
Case No	275/1997
Court	Supreme Court of Appeal
Judge	Mahomed CJ, Howie AJ, Olivier JA, Farlam AJA and Madlanga AJA
Heard	March 4, 1999
Judgment	March 19, 1999
Counsel	FH Odendaal for the appellant; AR Gautschi (with him GH Meyer) for the respondents

Flynote : Sleutelwoorde

Execution — Sale in execution — Notice of — Rule 46(7)(c) of Uniform Rules — 'Days' in such subrule referring to 'Court days' as defined in Rule 1, and not calendar days. C

Statute — Interpretation of — Word defined in statute — Correct approach to be followed in deciding whether word in legislation to be given its statutory definition or ordinary meaning — Statutory definition to prevail unless it appears that Legislature intended otherwise — In deciding that question, Court to ask whether application of statutory definition would result in such injustice or incongruity or absurdity D that Legislature could never have intended statutory definition to apply.

Statute — Interpretation of — Phrase 'unless the context otherwise indicates' in definition section of legislation (in casu Rules of Court) — 'Context' not to be confined to parts immediately preceding or following such word — 'Context' might include entire E enactment in which word or words in contention appear, and in its widest sense include enactments in pari materia and the situation, or 'mischief', sought to be remedied.

Headnote : Kopnota

In terms of Rule 46(7)(c) of the Uniform Rules of Court, the sale in execution of property has to be advertised F in locally circulating newspapers 'not less than three days and not more than five days' before the date of the sale. Rule 1 provides that '. . . unless the context otherwise indicates . . . ''Court day'' shall mean any day other than a Saturday, Sunday or Public holiday, and only Court days shall be included in the computation of any time expressed in days prescribed by these Rules or fixed by any order of Court . . .'. Pursuant to an advertised sale in execution, G the question arose whether the 'days' referred to in Rule 46(7)(c) were 'Court days' as defined, or simply calendar days. At the time when the sale in execution had been advertised, Rule 46(16), which expressly states that 'days' means 'Court days', had not yet been introduced.

Held, that the correct approach to be followed in deciding whether a word in a statute (or, in casu, the H Uniform Rules of Court) should be given its statutory definition or the ordinary meaning was as follows: the statutory definition had to prevail unless it appeared that the Legislature intended otherwise and, in deciding whether the Legislature so intended, the Court generally asked itself whether the application of the statutory definition would result in such injustice or incongruity or absurdity as to lead to the conclusion that the Legislature could never have intended the statutory definition to apply. (Paragraph [18] at 1044A - B and D/E - F.) I

Held, further, that the above principle applied whether or not there was (as in casu) a definition section which expressly provided that the definition should be applied 'unless inconsistent with the context', or 'unless the context otherwise indicates'. Although, strictly, the 'context' of a word consisted of the 'parts which immediately preceded or followed' that word, the Court did not have to confine itself to so narrow an examination of the J

1999 (2) SA p1037

legislation. 'Context' included the entire enactment in which the A word or words in contention appeared, and in its widest sense would include enactments in pari materia and the situation, or 'mischief', sought to be remedied. (Paragraphs [18] and [20] at 1044C - D/E and H/I - I.)

The dictum in Canca v Mount Frere Municipality 1984 (2) SA 830 (Tk) at 832B - G applied.

Held, further, adopting the above test, that it was plain B that the defined meaning of 'days' in Rule 46 could not lead to any injustice, incongruity or absurdity. The defined meaning, viz 'Court days', therefore had to prevail. (Paragraph [19] at 1044F - F/G.)

The decision in the Witwatersrand Local Division in Hoban v ABSA Bank Ltd t/a United Bank and Others confirmed for different reasons.

Cases Considered

Annotations

Reported cases C

Attorney-General v H R H Prince Ernest Augustus of Hanover [1957] AC 436 (HL) ([1957] 1 All ER 49): applied

Canca v Mount Frere Municipality 1984 (2) SA 830 (Tk): dictum at 832B - G applied D

Re Evans [1891] 1 QB 143: applied

First Consolidated Leasing Corporation Ltd v Theron 1974 (4) SA 244 (T): not followed

Röntgen v Reichenberg 1984 (2) SA 181 (W): followed but dicta at 184H and 185F - H qualified.

Rules Considered

Rules of Court E

The Uniform Rules of Court, Rule 46: see Erasmus and Barrow The Supreme Court Act 59 of 1959 and the Magistrates' Courts Act 32 of 1944 8th ed (1994) Part A and 11th ed (1997) Part A at 82 - 5.

Case Information

Appeal from a decision in the Witwatersrand Local Division (Tuchten AJ). The facts appear from the judgment of Howie JA. F

F H Odendaal for the appellant.

A R Gautschi SC (with him G H Meyer) for the respondents.

In addition to the cases cited in the judgment of the Court, counsel on both sides referred to the following authorities:

Brummer v Gorfil Brothers Investments (Pty) Ltd 1997 (2) SA 411 (T) G

Chasfre Investments (Pty) Ltd v Majavie and Others 1971 (1) SA 219 (C) at 222B, 224H

Chopra v Spars Cinemas (Pty) Ltd and Another 1973 (2) SA 352 (D) at 357B

Conradie v Jones 1917 OPD 112 at 116

Cummins v Bartlett NO and Another 1991 (4) SA 135 (E) H at 143A

Dorasamy v Messenger of the Court, Pinetown and Others 1956 (4) SA 286 (N)

Foster v Carlis & Houthakker 1924 TPD 247

Germishuizen v Kingsburg Town Council and Others 1993 I (1) SA 757 (D)

Gibson NO v Housing Utility Co Ltd and Others 1963 (3) SA 783 (T) at 786C

Hessel's Cash and Carry v South African Commercial Catering and Allied Workers Union and Others 1992 (4) SA 593 (E) at 599F - 600B

Jones and Others v Trust Bank of Africa Ltd and Others 1993 (4) SA 415 (C) J

1999 (2) SA p1038

Joosub v J I Case SA (Pty) Ltd (now known as A Construction and Special Equipment Co (Pty) Ltd and Others) 1992 (2) SA 665 (N) at 672E - F, 673D, 674J - 679C

Kaleni v Transkei Development Corporation and Others 1997 (4) SA 789 at 791F

Kannemeyer v Gloriosa 1953 (1) SA 580 (W) at 586 B

Krugel v Minister of Police 1981 (1) SA 765 (T) at 767E, 768C - D

Lange and Others v Liesching and Others 1880 Foord 55 at 59

Laws v Rutherford 1824 AD 261 at 263

Marais v Aldridge and Others 1976 (1) SA 746 (T) at C 752H, 752C, 753A - B

McGill v Vlakplaats Brickworks (Pty) Ltd 1981 (1) SA 637 (W) at 643C - F

McPhee v McPhee and Others 1989 (2) SA 765 (N) at 770A

Messenger of the Magistrate's Court, Durban v Pillay D 1952 (3) SA 678 (A) at 683 - 4, 685B

Minister of Prisons and Another v Jongilanga 1985 (3) SA 117 (A) at 123

Mngadino v Ntuli and Others 1981 (3) SA 478 (D) at 180

Modelay v Zeeman and Others 1968 (2) SA 792 (D) at 795

Modelay v Zeeman and Others 1968 (4) SA 639 (A)

Nampak Products Ltd t/a Nampak Flexible Packaging v Sweetcor E (Pty) Ltd 1981 (4) SA 919 (T) at 922F - G

Pillay v Messenger of the Magistrate's Court, Durban 1951 (1) SA 259 (N) at 264E - F, 265B

Progress Shippers (Pty) Ltd v Van Staden 1963 (1) SA 87 (T) at 91H - 92A

Reinhardt v Riker and David 1905 TS 179

Rosenthal and Lazarus v Meyer and Meyer 1938 TPD 274 F

Rossiter and Another v Rand Natal Trust Co Ltd 1984 (1) SA 385 (N) at 387H

Rossouw and Steenkamp v Dawson 1920 AD 173

Sokdeyi and Others v Sahadeo and Others 1952 (4) SA 568 G (A) at 571E - 572F

Sowden v ABSA Bank and Others 1996 (3) SA 814 (W) at 819B - E, 819F - G

Suidwes-Afrikaanse Munisipale Personeel Vereniging v Minister of Labour and Another 1978 (1) SA 1027 (SWA) at 1038B - C

The Master v Zick 1958 (2) SA 539 (T)

Torwood Properties (Pty) Ltd v South African Reserve H Bank 1996 (1) SA 215 (W) at 231B

Van der Walt v Kolektor (Edms) Bpk en Andere 1989 (4) SA 690 (T)

Zeiler v Rosseau 1878 Kotzé 35.

Erasmus Superior Court Practice at B1-172 I

Matthaeus De Actionibus 1.16.11.

Cur adv vult.

Postea (March 19).

Judgment

Howie JA:

[1] The home of appellant and his ex-wife was the subject of a sale in J

1999 (2) SA p1039

Howie JA

execution at the instance of the first respondent bank. A The sale was arranged for Friday, 22 April 1994. In terms of Rule 46(7)(c) of the Uniform Rules as it read then (it has since been amended) the sale had to be advertised in locally circulating newspapers

'not less than three days and not more than five days'

before the sale date. It was advertised on the preceding Friday. The B sale took place and the property was sold.

[2] If 'days' in the subrule meant calendar days then the advertisements were published more than five days before the sale, in conflict with the requirement in question. If 'days' meant 'Court days', as defined in Rule 1, then the sale was advertised on the fifth C preceding Court day in compliance with the requirement concerned.

[3] Contending for non-compliance...