THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no:  659/05
NOT REPORTABLE
In the matter between:

CLEARING AGENTS, RECEIVERS & SHIPPERS            APPELLANT

and

THE MEMBER OF THE EXECUTIVE
COUNCIL: TRANSPORT, KWAZULU-NATAL        1ST RESPONDENT

THE MINISTER OF TRANSPORT                              2ND RESPONDENT

THE COMMISSIONER FOR THE
SOUTH AFRICAN REVENUE SERVICE                   3RD RESPONDENT

Before:  Scott, Nugent, Lewis, Jafta et Cachalia JJA

Heard:  13 March 2007

Delivered:  28 March 2007

Summary:
All motor vehicles must be registered and licensed in accordance with the National Road
Traffic Act 93 of 1996. Regulation 84, which is one of the regulations promulgated in terms
of the Act, provides for unregistered and unlicensed vehicles to be operated on a public
road temporarily under a temporary or special permit. It is intended as an interim measure,
to permit unregistered and unlicensed motor vehicle users to operate their vehicles pending
their registration and licensing in terms of the Act. It cannot be used to facilitate the
transport of vehicles, using their own power, from a South African port to a neighbouring
country.

Neutral citation:  This judgment may be referred to as Clearing Agents v MEC Transport
[2007] SCA 35 (RSA)

CACHALIA JA
[1] The appellant is a universitas whose members describe themselves as
clearing and forwarding agents and motor vehicle importers. The first and
second respondents are the Member of the Executive Council: Transport,
Kwazulu-Natal who is responsible for the administration of transport in that
province and the Minister of Transport to whom the administration of the
National Road Traffic Act 93 of 1996 (‘the Act’) has been entrusted. I refer to
them together as ‘the respondents’. The third respondent has no interest in
these proceedings.

[2] There are three appeals before us. The main appeal arises in the
following circumstances. There is a large market for imported second-hand
motor vehicles in South Africa’s neighbouring countries apparently because
they are more expensive when purchased in South Africa. The appellant’s
members exploit this market by sourcing the vehicles from foreign countries,
and then ship them to Durban from where they are driven to neighbouring
countries. The vehicles thus sourced are not intended for use in this country.

[3] The appellant’s members have been engaged in this business since at
least October 2002 when the first and third respondents’ officials amended the
relevant rules of the Customs and Excise Act 91 of 1964 to facilitate the
removal in bond of the imported vehicles on South African roads to foreign
destinations. They use the procedures provided for in reg 84 to achieve this
result. Thus once the vehicles were physically offloaded from a ship, the
appellant’s members applied for three-day ‘special permits’ to enable them to
be driven to a roadworthy testing centre to obtain certificates of
roadworthiness. Thereafter twenty-one day ‘temporary permits’ were issued to
facilitate their being driven to foreign destinations on South African roads.1

1 See reg 84 below para 8.

[4] In February 2005 the National Department of Transport, which reports
to the second respondent, was advised that reg 84 does not permit the issue of
temporary and special permits to facilitate the transportation of these vehicles
from the port of entry to foreign countries. The Department’s Director-
General accordingly issued a directive in May 2005 that the practice be
discontinued. Following this directive the first respondent issued a circular,
MLB Circular No 29/2005, instructing all registering authorities to
discontinue issuing ‘special’ and ‘temporary permits’ for such vehicles with
effect from 1 July 2005. In response the appellant sought a declaratory order
in the court below that reg 84 authorises ‘the issue of temporary and special
permits in respect of imported second hand motor vehicles intended to be
driven in transit on South African roads, for the purposes of export’. The
application was dismissed by Koen AJ in the Durban High Court. The
appellant approaches this court with leave of the court below. The main
question in this appeal is whether reg 84, properly construed, authorises the
issue of temporary and special permits for the purpose of enabling vehicles to
be driven on South African roads from the port of entry to our neighbouring
countries.

[5] There are two further subsidiary appeals. The first is against an order of
Koen AJ that the appellant furnish security for costs. The second is against an
order of Combrinck J interdicting the respondents from acting upon the
directive pending the determination of the main appeal. It is convenient to
dispose of these appeals immediately. Counsel for the parties agree that the
determination of this dispute hinges on the outcome of the main appeal and
that the two other appeals will have no practical effect or result. It is not
suggested that there are any exceptional circumstances that warrant their

consideration.2 Those appeals ought thus to be dismissed with costs. I turn to
consider the main appeal.

[6] A ‘regulation’ is defined in the Act to mean a regulation in terms of the
Act. Regulation 1 provides that in the regulations, an expression defined in the
Act has that meaning unless the context indicates otherwise. Regulations are
subordinate legislation but the principles of statutory interpretation are equally
applicable to them. The proper approach to be followed when interpreting any
statutory provision or regulation was formulated by Wessels AJA in
Stellenbosch Farmers’ Winery Ltd v Distillers Corporation (SA) Ltd3 as
follows:

‘In my opinion it is the duty of the Court to read the section of the Act which requires
interpretation sensibly, i.e. with due regard, on the one hand, to the meaning or meanings
which permitted grammatical usage assigns to the words used in the section in question
and, on the other hand, to the contextual scene, which involves consideration of the
language of the rest of the statute as well as the “matter of the statute, its apparent scope
and purpose, and, within limits, its background”. In the ultimate result the Court strikes a
proper balance between these various considerations and thereby ascertains the will of the
Legislature and states its legal effect with reference to the facts of the particular case which
is before it.’

[7] The regulations must accordingly be considered in conjunction with and
in the context of the Act. The Act’s object is ‘to provide for road traffic
matters which shall apply uniformly throughout the Republic and for matters
connected therewith’. Its underlying purpose is to regulate the use of motor

2 Section 21A of the Supreme Court Act 59 of 1959 Powers of court of appeal in certain civil proceedings
(1) ‘When at the hearing of any civil appeal to the Appellate Division or any Provincial or Local Division of
the Supreme Court the issues are of such a nature that the judgment or order sought will have no practical
effect or result, the appeal may be dismissed on this ground alone.
(2) . . .
(3) Save under exceptional circumstances, the question whether the judgment or order would have no
practical effect or result, is to be determined without reference to consideration of costs.’
3 1962 (1) SA 458 (A) at 476E-G.

vehicles in the Republic. Section 4 of the Act requires all motor vehicles to be
registered and licensed unless exempt by regulation. Regulation 5 sets out the
types of motor vehicles that fall within the exemption.4 Subject to these
exemptions every motor vehicle in the Republic, whether or not operated on a
public road, must be registered by a title holder thereof with the appropriate
registering authority in accordance with the provisions of Part 1 under Chapter
111 of the Regulations.

[8] Regulation 84, which we are concerned with for present purposes,
provides for those circumstances where unregistered and unlicensed motor
vehicles may be operated on a public road under a temporary or special
permit. It reads thus:

‘(1)
A person who desires to operate on a public road a motor vehicle which has not
been registered and licensed or not licensed, and may not otherwise be so operated, may –
(a)
if he or she is the owner of such motor vehicle, obtain a temporary permit in respect
of such motor vehicle in order to operate such motor vehicle on a public road as if it
is registered and licensed, if such motor vehicle is to be –

(i)
delivered by or to such owner, who is a motor dealer; or
(ii)
registered and licensed in terms of this Chapter, but only during the period
permitted for such registration and licensing; or
(b)
obtain a special permit in respect of such motor vehicle in order to operate such
motor vehicle on a public road as if it is registered and licensed for purposes of –

(i)
testing such motor vehicle;
(ii)
proceeding to or returning from a place where repairs are to be or have been
effected to such motor vehicle;

(iii)
reaching an examiner of vehicles or mass measuring apparatus; or

(iv)
repossessing such motor vehicle, as contemplated in regulation 69(2).
(2)
. . .

4 These include motor vehicles propelled by electrical power derived from overhead wires, have crawler
tracks, belong to the Department of Defence or are self-propelled lawnmowers.

(3)
The owner of a motor vehicle which is licensed and who cannot comply forthwith
with the provisions of regulation 35 or 36, may obtain a temporary permit in order to
operate the motor vehicle on a public road.
. . .

[9] Regulation 84 allows for a temporary permit to be issued ‘if a motor
vehicle is to be registered and licensed in terms of this Chapter’ (Chapter IV).
The vehicles in the present case are not intended to be registered under the
regulations, whether a regulation falling within this chapter or under any other
regulation. Counsel for the appellants submitted that reg 875 (contained in this
chapter) contemplates a register being kept of permits that are issued under
reg 84 and that the recordal of permits in that register constitutes the
registration of the vehicles concerned. Once permits were issued to members
of the appellant, so it was submitted, and the permits were recorded in that
register, that would constitute registration of the vehicles concerned under the
provisions of this chapter. It follows, the submission continued, that the
vehicles concerned were indeed ‘intended to be registered’ under this chapter.
There is no merit in the submission. The recordal of permits under reg 87 does
not constitute the registration of the vehicles concerned.

[10] The clear purpose of reg 84 is to allow for vehicles to be driven on the
roads pending their registration in accordance with the regulations (the
reference in reg 84(1)(a)(ii) to ‘this chapter’ is probably erroneous). The

5 Regulation 87 Manner of issue of temporary or special permit ‘(1)  On receipt of the application referred
to in regulation 85(1) or (2), the registering authority may, and if the applicant so requires, shall issue an
assessment showing the appropriate fees as determined by the MEC of the province concerned and if
applicable, the penalties and arrear fees referred to in regulations 57 and 59.
(2)  On submission of the assessment and upon payment of the fees and penalties referred to in subregulation
(1), the registering authority shall, subject to the provisions of regulation 59(2), and if satisfied that the
application is in order –
(a)  record the particulars pertaining to –
(i)  the applicant; and
(ii)  if applicable, the date, number and place of issue of a certification of roadworthiness, referred to in
regulation 85(3)(c);
in the register of motor vehicles; . . .’

vehicles that are now under consideration are not intended to be registered
under the regulations, whether under this chapter or at all, and on that ground
alone the appellants are not entitled to permits. It is not necessary in the
circumstances to consider the other grounds upon which they were said not to
fall within the terms of the regulation.

The following order is accordingly made:

(i)
The main appeal (against the order of Koen AJ) is dismissed with costs
including those costs consequent upon the employment of two counsel;
(ii)
the second appeal (against the security of costs order of Koen AJ) is
dismissed with costs;
(iii)
the third appeal (against the order of Combrinck J) is dismissed with
costs.

_______________
A CACHALIA
JUDGE OF APPEAL

CONCUR:
SCOTT JA
NUGENT JA
LEWIS JA
JAFTA JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From: The Registrar, Supreme Court of Appeal

Date: 28 March 2007

Status: Immediate

Clearing Agents, Receivers & Shippers v MEC Transport, Kwazulu-Natal
Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal today dismissed, with costs of two counsel, an
appeal by Clearing Agents, Receivers & Shippers (the appellant) against a
decision of the Durban High Court upholding a directive issued by the Director
General of the Department of Transport that regulation 84 of The Road Traffic
Regulations, (promulgated by the Minister of Transport in terms of the
National Traffic Act 93 of 1996) does not authorise the issue of temporary
permits in respect of imported second hand motor vehicles intended to be
driven in transit on South African roads, for the purposes of export. The first
and second respondents are the MEC for Transport, Kwazulu-Natal and The
Minister of Transport to whom the administration of the National Road Traffic
Act has been entrusted.

The appellant had sought a declaratory order on behalf of its members that
regulation 84 permitted the issue of special and temporary permits to facilitate
imported vehicles to be driven on South African roads to foreign destinations.
The appellant’s members have since October 2002 been able to facilitate the
removal in bond of imported vehicles on South African roads to foreign
destinations. They used the procedures provided for in regulation 84 to apply
for special permits to enable the vehicles to be driven to a roadworthy testing
centre and to obtain certificates of roadworthiness. Temporary permits were
then issued to facilitate the driving of the vehicles to foreign destinations on
South African roads. In May 2005 the Minister issued a directive that this
practice was to be discontinued because the regulation did not permit the
issue of temporary and special permits to facilitate the transportation of these
vehicles from the port of entry to foreign countries.

The SCA concluded that regulation 84 provides for unregistered and
unlicensed vehicles to be operated on a public road temporarily under a
temporary or special permit, and that it was intended to be an interim measure
to permit unregistered and unlicensed motor vehicle users to operate their
vehicles pending their registration and licensing in terms of the Act. The
regulation can therefore not be used to facilitate the transport of vehicles,
using its own power, from a South African port to a neighbouring country.

The SCA also considered two subsidiary appeals. First, an order compelling
the appellant to furnish security for costs and secondly, that the Minister be
interdicted from acting upon the directive to discontinue the issue of
temporary and special permits pending the determination of the appeal. The
SCA found that these appeals had no practical effect and that no exceptional
circumstances were shown to exist what warranted there consideration. In the
case of the first appeal the appellant was ordered to pay the respondents’
costs and in the second appeal the respondents were ordered to pay the
appellants’ costs.