Tomson's Truck and Car Co (Pty) Ltd v Odendaal and Another

• Jurisdiction: South Africa
• Judge: Potgieter J
• Judgment Date: 15 December 1955
• Citation: 1956 (1) SA 794 (O)
• Hearing Date: 10 November 1955
• Court: Orange Free State Provincial Division

Potgieter, J.:

In this case plaintiff sued the defendants for provisional sentence on a hire purchase agreement for the sum of £745. B It is alleged in the summons that the said sum is due and owing by virtue of a certain hire purchase agreement entered into between plaintiff and Coalbrook Trust (Pty.) Ltd., and which the said defendants signed as sureties and co-principal debtors, jointly and severally in respect of certain Oliver tractor and two 10 - ton trailers. It is further alleged that the balance of £745 is due and owing by reason of C the purchaser having made default with his monthly instalments to the extent of £250.

First defendant did not oppose and on the 8th September, 1955, provisional sentence was granted against him. Second defendant, however, opposed and filed affidavits, the effect of which I will deal with later.

D At the hearing Mr. Kumleben in limine argued that the summons was not in order and premature because there is no allegation in the summons that a notice was served in terms of sec. 12 (b) of the Hire Purchase Act, 36 of 1942 (as amended), nor was such a notice served. Such a notice was necessary, so ran the argument, because the summons purports to enforce the acceleration of payment of the balance due.

E The purchase price was the sum of £1,645 17s. and the agreement was entered into on the 24th June, 1953. It is clear, therefore, that at the time the agreement was entered into the provisions of the Hire Purchase Act did not apply because the purchase price was in excess of £500. By sec. 1 of Act 46 of 1954, sec. 2 of the Hire Purchase Act, 1942, was F amended by the substitution for the words 'five hundred' of the words 'two thousand'. Mr. Kumleben consequently argued that this amending section of the 1954 Act has retrospective effect and, therefore, although the agreement in question was entered into on the 24th June, 1953, it is nevertheless hit by the provisions of the Hire Purchase Act and that sec. 12 (b) must accordingly be complied with.

G Mr. Berman, for plaintiff, contended that the amending Act is prospective only. But he argued that apart from retrospectivity or otherwise of the Act the tractor and trailers were bought and that in terms of sec. 2 (b) of the Hire Purchase Act (as amended) read with Government Notice 2383 (G.G. 5376 of 19th November, 1954) the provisions of the Act do not apply in any event.

H In our law there is a presumption against retroactivity. In the case of Mahomed v Union Government, 1911 AD 1 at p. 8, INNES, J. (as he then was) is reported to have said:

'Now, the principle that (in the absence of express provision to the contrary) no Statute is presumed to operate retrospectively is one recognised by the civil law as well as by the law of England. The law-giver is presumed to legislate only for the future; and therefore a Statute which repeals another is considered not to interfere with vested rights under that other, unless it does so in clear

Potgieter J

terms. Very frequently, however, the Legislature, when it repeals one Statute and enacts another in its place, inserts a clause in the repealing enactment defining with greater or less elaboration the extent, if any, to which the repeal is to operate retrospectively.'

In the case of von Weiligh v The Land and Agricultural Bank of South Africa, 1924 T.P.D. 62 at p. 66, MORICE, A.J., said:

A 'It is a rule both of English and Roman-Dutch Law that a law is presumed not to be retrospective, unless such was clearly the intention of the Legislature.'

Where the meaning of the words is clear and they point to retrospectivity, then effect must be given thereto. I do not understand the words 'in the absence of express provision to the contrary' used in Mahomed's case to mean that before any provision in an Act can be B treated as retrospective, the Legislature must state that in so many words. As long as it is clear from the language used that the Legislature clearly intended the provision to operate retrospectively, such an interpretation is justified. (Cf. Steyn, Uitleg van Wette, 2nd ed., p. 82, n. 38; Shewan Tomes & Co. Ltd v Commissioner of Customs and Excise, 1955 (4) SA 305 (AD) at p. 312.

C In Craies on Statute Law, 5th ed., p. 358, the learned author quotes the following passages from the case ofLauri v Renad, 1892 (3) Ch. 421:

'But the general law was concisely stated by LORD HATHERLEY in his judgment in Pardo v Bingham, where he said: 'The question is . . . secondly, whether on general principles the Statute ought in this particular section to be held to operate retrospectively, the general D rule of law undoubtedly being, that except there be a clear indication either from the subject matter or from the wording of a Statute, the Statute is not to receive a retrospective construction. . . . In fact, we must look at the general scope and purview of the Statute, and at the remedy sought to be applied, and consider what was the former state of the law and what it was the Legislature contemplated.''

Now sec. 2 of the Hire Purchase Act before the amendment in 1954 read as follows:

E '2. (1) The provisions of this Act shall:

(a)

apply to agreements relating to movables, entered into after the commencement of this Act, under which the purchase price does not exceed five hundred pounds; and

(b)

not apply to any agreement under which the State is the seller.

(2)...