Union Government (Minister of Finance) v Mack

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, Juta AJA and AFS Maasdorp Acting AJA
• Judgment Date: 28 December 1917
• Hearing Date: 08 November 1917
• Court: Appellate Division

Solomon, J.A.:

The facts of this case are not in dispute, and may be very briefly stated. In 1914 the respondent was called out on active service and was released on the 12th September, 1916. In August of the same year he pegged out 100 claims in the mining district of Heidelberg, and acquired by transfer another 128 claims in the same district. On the 10th October,

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1916, he sold these claims. The whole question to be decided is whether by virtue of the provisions of sec. 103 of Act 35 of 1908 (Transvaal) he is released from the payment of licence moneys in respect of these claims from the 1st September, up to which date the licences had been paid before he acquired them, to the 12th October, being 30 days after the cessation of his service. The majority of the Transvaal Provincial Division, affirming the judgment of the magistrate of Pretoria, held that he was, and it is from that decision that this appeal is brought. The contention of the appellant is that the relief, which is given by sec. 103 to persons on active service, from the payment of licence moneys applies only in respect of claims held by such persons at the time when they went on service and has no application to claims acquired by them after that date.

Now the language of sec. 103 is certainly very wide. Any person who has been called out on active service. . . . "shall be entitled to a period of 30 days' grace after the cessation of such service within which to renew any licence mentioned in this Chapter; provided that notice in writing shall have been given to the Mining Commissioner of the date of cessation and commencement of such service. On the renewal of such licence no licence moneys shall be payable in respect of the period of such service." The words "any licence" in their ordinary sense would of course include licences on claims acquired during the period of service; and the whole question for consideration is whether we are justified in restricting these general words so as to exclude such licences. Now the primary rule in the construction of Statutes is that the language of the Legislature should be read in its ordinary sense; but this is a rule which is subject to exceptions, and there are many cases in the reports in which the Courts have taken upon themselves to modify the plain meaning of the language. A somewhat striking example of this is afforded by the case of Venter v Rex (1907, T.S. 910), where in sec. 3 of Transvaal Ordinance 20 of 1905, the general words "any person entering into this Colony" were held not to be applicable to persons resident in that Colony, on the ground, as stated by the CHIEF JUSTICE in his judgment, that "I am satisfied from the context of the Statute that the Legislature did not intend that residents should come within the operation of the Ordinance." In that case a number of English

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decisions were referred to, and in my reasons I quoted the following extract from the considered judgment of the Privy Council in the case of The Borough of Pietermaritzburg v Natal Land and Colonization Company (13 A.C. 478): "Their Lordships do not intend to depart from the rule that in the construction of Statutes the ordinary meaning of the words used must be adhered to, unless that weaning is at variance with the intention of the Legislature to he collected from the Statute or leads to some absurdity or repugnance." Such then being the rule laid down by the ultimate Court of Appeal for the Union of South Africa, it remains to be considered whether the appellant's contention can be brought within its terms.

Now, I do not think, that there can be much doubt as to what was the intention of the Legislature in enacting this section. It occurs in a chapter dealing with the "Lapsing of Rights" to stands and claims. Under the Act licence moneys have to be paid monthly in advance, and if the holder of a claim is in arrear in his payment, it is provided that such claim shall lapse. Provision is, however, made that the licence holder may during a period of three months thereafter obtain a new licence by paving the arrears due together with a fine of a quarter of such amount On the expiry of such period of three months the Minister shall cause the right to a licence in respect of the lapsed claim to be advertised for sale by public auction 14 days thereafter, and at any time prior to that date a further opportunity is afforded the original holder of renewing his licence. These being the general provisions on the subject, the Legislature proceeded in sec. 103 to grant special protection against the loss of their claims to persons who were on active service. In their case the right to renew licences which had lapsed owing to non-payment of licence moneys was not limited to the period above specified, but was extended so as to cover the whole term of their service together with a further period of 30 days' grace after its cessation. Moreover this right was not conditioned upon the paying of the arrears up to date together with a fine but it was expressly provided by sec. 103 that "on the renewal of such licences no licence moneys shall be payable in respect of the period of such service." The section therefore was intended not only to protect such claim holders from the risk of the forfeiture of their claims but also to relieve them from their legal liability

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to pay licence moneys during their service. And no doubt the idea underlying this legislation was that persons called upon to discharge military duties would be prevented from attending to their ordinary business, and might, therefore, be unable from financial or other reasons to pay their licence moneys as they fell due: So that it was considered only right and proper that, special protection and relief should be given to them. I cannot think, however, that it was ever contemplated by the Legislature that persons on active service might acquire claims by pegging or purchase, or could have intended that in such an event they should participate in the privileges provided for by sec. 103. For if they were able to attend to their business is usual, there is no reason whatsoever why they should be relieved from the payment of the legal liabilities so incurred by them. I agree entirely with Mr. Justice GREGOROWSKI that it never could have been intended that these persons should be placed in a privileged position in carrying on business, with the inevitable result that they would be encouraged to neglect their military duties and to speculate in claims at the expense of the private owners of the land upon which the claims were situate and of the Government. For it must be borne in mind that the privilege conferred upon persons on active service of necessity imposes a corresponding burden upon those to whom the licence moneys are payable, so that a law passed for the protection of soldiers might very well, as the learned Judge says, become an engine of wrong and oppression.

Considerations of this nature would certainly suggest that in enacting sec. 103 the Legislature intended to protect and relieve persons on active service in respect only of claims held by them at the time when they were called out, and not also in respect of claims pegged out or purchased by them after such date. If, however, there were nothing in the section itself to indicate that such was the intention of the Legislature, it may be that we should not be justified in refusing to give the general words "any claims" their full meaning, even though to do so would produce such startling results as those above indicated. Fortunately, however, we are not left in that predicament, for in the language of the section there is in my opinion sufficient to show that the relief afforded was meant to be given only in respect of claims held by soldiers at the time when they were

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called out on active service. For in the first place the...