Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and Others

• Jurisdiction: South Africa
• Citation: 1990 (1) SA 925 (A)

Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and Others
1990 (1) SA 925 (A)

1990 (1) SA p925

Citation	1990 (1) SA 925 (A)
Court	Appellate Division
Judge	Joubert JA, Smalberger JA, M T Steyn JA, F H Grosskopf JA and Nicholas AJA
Heard	November 2, 1989
Judgment	November 30, 1989

Flynote : Sleutelwoorde B

Statute — Interpretation of — 'Purposive construction' of statutes — C Where provision in statute ambiguous and no assistance can be obtained from other recognised aids to interpretation, it is appropriate to have regard to the purpose of the provision in order to determine the Legislature's intention — Such purpose can provide a reliable pointer to Legislature's intention — Purposive construction of statutory D provisions does not challenge the literal interpretation principle as it applies only in cases of ambiguity.

Road — Toll road — Declaration of portion of national road as toll road — Section 9(3) of National Roads Act 54 of 1971 imposes precondition that 'alternative road' should exist which serves same destinations as toll road — Such alternative road not required to be E entirely separate and distinct from declared toll road — Means an alternative route which may be travelled without the need to pay toll to reach the same destination as the toll road even though it traverses sections of the toll road.

F Road — Toll road — Operation of toll road and collection of tolls by concessionary in terms of agreement with National Transport Commission — Validity of — Agreement providing for concessionary to carry out certain rehabilitation and construction work on the toll road in return for compensation in an amount equivalent to the gross proceeds of tolls G collected — Subsequent agreement entered into authorising concessionary to collect tolls at toll gates and to operate the toll road — Provisions of such agreements falling squarely within the ambit of the powers conferred on the Commission by s 6(3)(a) of National Roads Act 54 of 1971 — Concessionary accordingly legally entitled to operate the H toll roads and collect the tolls.

Road — Toll road — Determination of tolls — Minister's determination of under s 9(4) of National Roads Act 54 of 1971 — Legislature intending in provision that 'the amount of a toll levied... shall be determined by the Minister', that amount of toll to be decided or fixed I — Word 'determined' in such provision not meaning 'set bounds to' — Primary object of provision is to safeguard the public against arbitrary and excessive imposts — Provision not preventing road users from being charged less than amount determined — Power to collect tolls a permissive power — Minister's determination of tolls that 'shall not J exceed' amounts stated accordingly valid.

1990 (1) SA p926

Headnote : Kopnota

A Where there is ambiguity in a statutory provision, more than one interpretation thereof being linguistically feasible, and there are no presumptions or other recognised aids to interpretation which can assist to resolve the ambiguity, it is appropriate to have regard to the purpose of the provision in order to determine the Legislature's intention. The notion of what is known as a 'purposive construction' is not entirely alien in our law as it has been favourably received in the B realm of patent law in the construction of patent specifications. There is no reason in principle why such an approach should not also be applied in the interpretation of ambiguous statutory provisions. Mindful of the fact that the primary aim of statutory interpretation is to arrive at the intention of the Legislature, the purpose of a statutory provision can provide a reliable pointer to such intention where there C is ambiguity. It must be accepted that the literal intepretation principle is firmly entrenched in our law and the application of the 'purposive construction' approach does not seek to challenge that principle. But where the application of the literal interpretation principle results in ambiguity and one seeks to determine which of more than one meaning was intended by the Legislature, one may properly have regard to the purpose of the provision under consideration to achieve such objective. To this extent the application of a purposive construction is justified.

The appellants (applicants in the Court below) had unsuccessfully D applied to a Provincial Division for an order declaring that (a) the declaration of portion of a certain national road in Natal as a toll road was invalid, (b) the operation of the toll gates on the road and the levying of tolls by the first respondent (the concessionary in respect thereof in terms of an agreement between the first respondent, the Government (second respondent) and the National Transport Commission (third respondent)) was unlawful, and (c) the determination of the amount of the tolls by the Minister of Transport (fourth respondent) was unlawful and invalid. In an appeal against the dismissal of the application, the appellants contended, as to (a) that s 9(3) of the E National Roads Act 54 of 1971 provided that a precondition to the valid declaration of the toll road was the existence of an alternative road as envisaged by the section and that the use of the words 'an alternative road' in s 9(3) meant that there should be two distinct, entirely separate roads. As to (b), the appellants referred to the aforementioned agreement which provided in clause 4.1 that the concessionary, in return for certain rehabilitation and construction work on and in connection F with the toll road, would be compensated in an amount 'equivalent to the gross proceeds of tolls collected...', and to a subsequent agreement (known as the delegation agreement) whereby the third respondent delegated to the first respondent 'the power to collect money payable by way of a toll at a toll gate on the toll road referred to in the (concession) agreement and to operate such toll road and toll gate upon and subject to the terms and conditions set out in the (concession) agreement...'. The appellants contended that these agreements were G invalid as they amounted in essence to the disposing, by the third respondent, of the toll road and the State's rights therein to the first respondent, which was described by the appellants as an act of 'privatisation' for which specific legislative authority was required and which the National Roads Act, in its present form, did not confer on the third respondent. As to (c), the appellants referred to the Minister's determination of the tolls payable in which it was provided that the amount of toll payable 'shall not exceed' certain amounts stated therein. The appellants contended that the amount of toll payable H had not been determined as required by s 9(4)(a) of the National Roads Act as such section required the determination to be of a fixed figure and not of a maximum permissible one.

Held, as to (a), that the purpose of s 9(3) of the Act had been well expressed by the Judge in the Court a quo: the object which s 9(3) aimed at was to ensure that, before the toll road was declared, an alternative road would be available to road users who did not wish to pay toll, but nonetheless wished to go where the toll road led.

I Held, further, having regard to such purpose, that the words 'an alternative road' in s 9(3) of the Act did not mean a road entirely separate and distinct from the declared toll road, but meant an alternative route which could be travelled without the need to pay toll to reach the same destination as the toll road, even though it traversed sections of the toll road.

Held, accordingly, that the requirements of s 9(3) of the Act had been satisfied and the declaration of the relevant portion of the national J road as a toll road was valid.

1990 (1) SA p927

A Held, further, as to (b), that the concession agreement (referred to as the 'interim agreement' in the judgment), stripped to its bare essentials, was a simple private law agreement between the Commission and the first respondent in terms whereof the latter undertook to carry out certain rehabilitation and construction work on and in connection with the toll road in return for which it was to be compensated as provided for in clause 4.3 of the agreement: its provisions fell squarely within the ambit of the powers conferred on the Commission by s B 6(3)(a) of the Act.

Held, further, that the purpose of the subsequent delegation agreement was to remedy the omission in the concession agreement to authorise first respondent to collect moneys payable as toll at the toll gates on the toll road, and to operate the toll road and the toll gates.

Held, further, that it was not necessary for the Commission in the delegation agreement to have specifically delegated any of its powers to the first respondent in terms of s 6(3)(b) of the Act: all that was C necessary was an agreement authorising the first respondent to collect tolls and operate the toll gates and such agreement would have fallen exactly within the scope of s 6(3)(a).

Held, further, however, that the fact that authoritiy to collect tolls and operate the toll gates was delegated rather than transferred to first respondent by simple agreement did not detract from the legal efficacy of the arrangement: the end result was the same - the first respondent was legally entitled to operate the toll gates and collect D the tolls.

Held, further, as to the contention that the agreements amounted to an unauthorised 'privatisation' of the State's rights in the toll road, that the ultimate aim of the Commission and the first respondent was to privatise the toll road and the final agreement relating thereto had not yet come into operation as the Commission, under the Act in its present form, did not have the necessary legal capacity to enter into an agreement containing the...