Court name
High Court
Case number
CA 127 of 2005
Title

S v Blaauws Transport (Pty) Ltd and Another (CA 127 of 2005) [2006] NAHC 10 (13 April 2006);

Media neutral citation
[2006] NAHC 10











REPORTABLE







CASE NO: CA 127/2005







IN THE HIGH COURT OF NAMIBIA







In the matter between:







BLAAUW’S TRANSPORT (PTY) LTD 1st
APPELLANT



ERASTUS HAIMBODI 2nd
APPELLANT







and







THE STATE RESPONDENT







CORAM: Tötemeyer AJ







Heard: 16 March 2006



Delivered: 13 April 2006





_________________________________________________________






APPEAL JUDGMENT







TÖTEMEYER AJ:







[1] During January 2005 both
appellants were convicted in the Magistrate’s Court of Walvis Bay
on a charge of having contravened Regulation 254 (1) read with
Regulations 259 (e) (iii), 267, 384 and 369 and further read with
sections 1, 60, 63, 64, 67, 86, 87, 88, 91 and 106 of the Road
Traffic and Road Transport Act, Act 22 of 1999 (hereafter the “Road
Transport Act”), in that they wrongfully and unlawfully operated a
goods vehicle on 29 September 2004 whilst exceeding its permissible
maximum axle unit mass load.







[2] Both appellants appealed against
their conviction only.







[3] In the Magistrate’s Court as
well as in this Court the appellants were represented by Mr J H
Olivier whilst the respondent on appeal was represented by Mr O S
Sibeya.







[4] Upon a scrutiny of particularly
the regulations made under the Road Transport Act, it appears that
the essence of the appellants’ conviction – read against the
background of the allegations made in the charge sheet – is to be
found in regulation 254 (1) (c) read with Regulation 259 (e) (iii).
Read together, these two regulations have the effect that a person
may not operate a vehicle on a public road if the mass load of an
axle unit of the vehicle – in the case of appellants’ type of
vehicle – exceeds 1 800 kilograms.







[5] In the notice of appeal appellants
rely on numerous grounds of appeal. In summary the appellants allege
that the Magistrate erred in making the following findings:







[5.1] That the State proved beyond
reasonable doubt that the combination of vehicles of the appellants
exceeded the permissible maximum axle mass load of 1 800 kilograms;







[5.2] That the appellants had the
necessary intent to contravene the relevant statutory provisions.







[5.3] That Exhibit D handed in by
respondent as part of the record in the Magistrate’s Court
appearing at Record, 208 – which purported to be a
certificate of “verification or testing” as contemplated
by section 87 of the Road Transport Act and in respect of the
relevant weighing device concerned – complied with the
prescriptions of the said section 87 so as to invoke the presumption
set out in that section. In this regard appellants further contend
that:







[5.3.1] The Magistrate erred in
finding that Exhibit D sufficiently sets out the status or identity
of the author of the said certificate as contemplated by section 87;







[5.3.2] That the contents of the said
Exhibit D do not sufficiently indicate that the said weighing device
was indeed inspected or tested as required by section 87 or
otherwise, nor does Exhibit D set out the date on which the
inspection was done. No evidence was further tendered that the
weighing device was otherwise officially approved;







[5.4] By failing to uphold appellants’
contention that the evidence did not contain any reference to the
traceability of measurement of the measuring standard whereby the
weigh bridge was ostensibly tested in relation to the national
measuring standard.







[6] At the hearing of the appeal the
appellant abandoned the ground of appeal which is based on the
alleged absence of intent as referred to in paragraph [5.2] above.







[7] Central to the enquiry concerning
the appellants’ other grounds of appeal, was the issue concerning
the contents and correctness of the certificate as per Exhibit D. As
a result, the bulk of the arguments on appeal centered around Exhibit
D and the requirements for same as contained in section 87 of the
Road Transport Act.







[8] In order to properly appreciate
the submissions of both parties, I deem it appropriate to, at the
outset, quote the text of section 87 in full:







87: Where in any prosecution
for an alleged contravention of this Act, evidence to prove such
contravention is given of any mass as ascertained by means of a
weighing device, such mass shall be deemed to be correct in the
absence of any evidence to the contrary, provided there is produced
in respect of such weighing device a certificate purporting to have
been issued by an inspector as defined in section 1 of the Trade
Metrology Act, 1973 (Act no. 77 of 1973) indicating that the weighing
device was inspected for purposes of verification or testing in terms
of that Act on a date being not more than one year before the date of
the alleged contravention and that it was found to be correct in
accordance with the requirements of that Act.







[9] Central to securing a conviction
under the Road Transport Act (and the regulations made thereunder),
on a charge of exceeding a permissible axle mass load on an axle
unit, is proof of the correctness of the measurements of the relevant
weigh bridge or weighing device which determined the excess weight
alleged in the charge sheet. In order to consider the purpose of
section 87, regard should be had to the common law principles which
underly the proof of this aspect.







[10] In the matter of S v
Mthimkulu, 1975 (4) SA 759 (A)
, Corbett JA (as he then was)
held at 763 H as follows: “Whenever the facta
probanda
include concepts such as weight, speed, time,
length (or distance) or a combination of two or more of these
concepts, proof thereof must normally be presented in terms of the
measures in current use at the time
”. He further held [at 763
H -
to 764 A] that “Theoretically, such
evidence of measurement would always comprehend proper testimony as
to the trustworthiness of the method or process followed in order to
make the measurement and as to the accuracy of any instrument used in
that process
”.







[11] Corbett JA (at 764 C)
in principle accepted that, depending on the circumstances, a proper
testimony of the aforesaid nature will be “preliminary
professional testimony (1) to the trustworthiness of the process
or instrument in general (when not otherwise settled by judicial
notice) (2) to the correctness of the correctness of the particular
instrument
”,







[12] In the Mthimkulu
–matter, the aforesaid requirement to present expert evidence (and
in respect of both the trustworthiness of the process or instrument
concerned, as well as the correctness of the particular instrument in
question), was further discussed and qualified and the following
principles can be abstraced therefrom:







[12.1] A Court is entitled to take
judicial notice of a process as notorious and straightforward as
weighing on a scale. No expert evidence is necessary to explain this
process or attest to its reliability (at 765 E);







[12.2] At 765 A – B
the Court held that the issue as to whether or not the State is
required to present expert evidence to prove the aforegoing, depends
on:







[12.2.1] The nature of the process and
the instrument involved in the specific case;







[12.2.2] The extent, if any, to which
the evidence is challenged;







[12.2.3] The nature of the enquiry and
the facto probanda in the case.







No hard and fast rule can, or should
be, laid down.







[13] The excess mass load is a core
element of the charge in this matter. The relevance of the
correctness of the measurement of this excess is, to an extent,
demonstrated by the fact that the alleged excess of 1 800kg is only
10% of the permissible axle unit mass load of 18 000kg.







[14] The single witness who gave
evidence on behalf of the State, was a Mr Malinga, a transport
inspector employed by the Roads Authority of Namibia. When
considering his evidence, it becomes clear that the weigh bridge in
the vicinity of Walvis Bay which allegedly determined the excessive
axle unit mass load of appellants’ vehicle, is technically a fairly
sophisticated and computer-aided device. The weighing process and
procedures which are followed when using this weigh bridge can also
be described as complicated to some extent. In my view this weigh
bridge – as well as the manner in which it is ordinarily used –
cannot be equated with weighing done by means of an ordinary scale.







[15] In applying the abovementioned
principles expressed in Mthimkulu –matter – and
without, for the moment, considering the effect of section 87 of the
Road Transport Act – I am driven to the conclusion that, in order
to secure a conviction of the abovementioned nature, expert evidence
would ordinarily be required by the State on the issue of whether or
not the weigh bridge in question properly and correctly functioned at
the time when the vehicle concerned, was weighed. In casu
this conclusion is fortified by reason of the fact that the defence,
from the outset, challenged the accuracy and proper functioning of
the weigh bridge as at the time of the alleged offence. This was done
in terms of appellants’ statement made under section 115 of the
Criminal Procedure Act, 1977 (Exhibit A1 to the proceedings). In
addition, the validity of the verification certificate in respect of
the weigh bridge was also challenged. I will deal with this latter
aspect in more detail later.



[16] The legislature – apparently
mindful of the burden that would be placed on the State in order to
secure convictions on charges concerning excessive mass loads of
vehicles – introduced the presumption contained in section 87 of
the Road Transport Act. This presumption was clearly intended to
assist the State in the sense that, where evidence is given of any
mass as ascertained by means of a weighing device in order to prove a
contravention, such mass is deemed to be correct in the absence of
evidence to the contrary. In terms of the provisio contained
in section 87, this presumption is invoked only once a certificate is
produced in respect of the weighing device concerned.







[17] It is apparent from a proper
reading of section 87 that, in terms of the aforesaid provisio,
the relevant certificate should comply with certain prescriptions
before the presumption will be invoked. Those are:







[17.1] It should be a certificate
“purporting to have been issued by an inspector as defined
in section 1 of the Trade Metrology Act, 1973 (Act. No. 77 of 1973);







[17.2] The certificate should indicate
that the weighing device







[17.2.1] was inspected for the
purposes of verification or testing in terms of the Trade Metrology
Act;







[17.2.2] on a date being not more than
a year before the date of the alleged contravention;







[17.2.3] was found to be correct in
accordance with the requirements of that Act.







[18] Respondent’s witness Mr Malinga
was not qualified in evidence to be an expert concerning the proper
functioning of the weigh bridge as at the time of the alleged
offence, nor did he purport to give expert evidence on this issue.







[19] In order to prove this element,
the State attempted to invoke the presumption contained in section 87
of the Road Transport Act. For that purpose the State submitted
Exhibit D, in evidence, purporting to be a certificate in terms of
section 87. In considering Exhibit D, I will firstly confine myself
to the requirement set out in paragraph [17.1] above:







[19.1] In his argument, Mr Sibeya
relied on the authority of S v Van Vuuren, 1992 (2) SACR 313
(T)
:







[19.2] During argument I raised with
both counsel the principles as expressed in S v Van Vuuren,
also with reference to the authorities there referred to, such as R
v Moosa & Others, 1960 (3) SA 517 (A), at 522 F and 528 C
,
and S v Van der Merwe, 1979 (2) SA 760 (T), at 762 G.
All these cases correctly express the principle that a statutory
presumption which, is in the nature of the presumption contained in
section 87 of the Road Transport Act, assists the State in proving
its case and thus makes inroads upon the common law presumption of
innocence. As a result, presumptions of this nature should be
interpreted restrictively and strictly;







[19.3] On my understanding of section
87, it is a requirement that it should appear – ex facie the
contents of the certificate – that it has been issued by an
inspector as defined in section 1 of the Trade Metrology Act, 1973;







[19.4] If the contents of Exhibit D
are considered, the following appears:







[19.4.1] The head of Exhibit D (to the
right) reflects the letters “SABS”;







[19.4.2] In the left corner at the
head of Exhibit D the following typed inscription appears
SELF-INDICATING SCALES VERIFICATION REPORT”.







[19.4.3] Nearer to the foot of the
certificate the word “CERTIFICATE” appears in the center
of the page. It was apparently issued under an illegible signature
above the following typed wording







“TRADE METROLOGIST



for PRESIDENT”;







[19.4.4] The pro forma certificate
makes provision for a date to be inserted. The date inserted in
handwriting on Exhibit D is “2004-7-08”;







[19.4.5] The terms of the aforesaid
certification – and above the aforementioned signature – sets out
the following:







This is to certify that the
above instrument meets the requirements of the Trade Metrology Act
(Act 77 of 1973) and may be used in trade
”.







[19.4.6] At the foot of Exhibit D, it
contains the typed inscription “SOUTH AFRICAN BUREAU OF
STANDARDS
” with a South African address;







[19.5] The Trade Metrology Act, 1973,
was amended in Namibia by the Trade Metrology Amendment Act, Act No.
14 of 1995. The definition of “inspector” contained in
section 1 of the Act, was left unamended and states that the term
inspector” means “any inspector appointed under
section 3
”;







[19.6] Both counsel have incorrectly
quoted the contents of section 3 of the Trade Metrology Act in their
heads of argument in that they have either failed to consider the
terms of the Trade Metrology Amendment Act, Act No. 14 of 1995
or the provisions of the Executive Powers (Industries)
Transfer Proclamation AG 5 of 1978
. The following is the
correct text of section 3:







3. Appointment and
qualifications of inspectors
. – (1) Subject to the
provisions of the laws governing the public service, the Minister may
from time to time appoint inspectors to verify or test all measuring
instruments or any particular kind of measuring instrument in
accordance with the provisions of this Act, and to perform such other
functions as may be assigned to inspectors by this Act.









    1. No person shall in terms of
      subsection (1) be appointed as an inspector unless he has shown in
      undergoing an examination a knowledge of the appropriate provisions
      of this Act and –










  1. has, in accordance with a
    curriculum laid down from time to time by the director, passed an
    examination in –










    1. subjects so laid down; and











    1. practical work in verifying and
      testing all measuring instruments or the kind of measuring
      instrument in question; or










  1. has satisfied the Minister that he
    holds a certificate qualifying him to act as an inspector,








and no person shall act as an
inspector in respect of any particular kind of measuring instrument
unless he holds a certificate issued to him on the instructions of
the Minister to the effect that he is qualified to act as an
inspector in respect of all measuring instruments or that kind of
measuring instrument.









    1. Subject to the provisions of
      section 22, no inspector shall derive any profit from or be
      employed in the making, repair, adjusting or selling of any
      measuring instrument.









[19.6] It is thus clear that an
inspector is someone who should be appointed in a specific manner by
the Minister after having been qualified in a specific manner;







[19.7] The Trade Metrology Act does
not contain any definition of a term or designation such as a “Trade
Metrologist
”.







[19.8] Ex facie Exhibit D,
there is no indication that the “Trade Metrologist” who
had purportedly issued same, is an “inspector” as
contemplated by section 87 of the Road Transport Act (and read with
sections 1 and 3 of the Trade Metrology Act). Indeed the reader of
Exhibit D is entirely left in the dark as to what position a “Trade
Metrologist
” actually holds, and more importantly, as to
whether or not such a “Trade Metrologist” in any manner
holds the appointment or qualifications of an “inspector
as referred to in the aforesaid statutory provisions or has purported
to act as an “inspector” when issuing Exhibit D.







[19.9] Mr Sibeya submitted that, on
the basis of the Van Vuuren’s case, supra, the
presumption in section 87 came into operation and the State was
absolved from the obligation to tender expert evidence in order to
prove the proper functioning of the weigh bridge. The presumption
assisting the State as contained in the relevant South African
statute (as set out in Van Vuuren’s case, supra,
315 D
), differs from section 87 in a significant respect:
The relevant South African statute deems the weighing device to be
correct (unless the contrary is proved) as soon as evidence is
presented of the mass ascertained by that device. The South African
statute does not set the prerequisite condition for invoking the said
presumption, which is contained in section 87. The reliance on Van
Vuuren’s
case, supra, accordingly does not assist
the respondent;







[19.10] Mr Sibeya also relied on
section 7 of the Trade Metrology Act (as amended) and submitted that
in terms of section 7, the South African Bureau of Standards (“SABS”)
was appointed by the relevant Minister in Namibia as a trade
metrology agency. On this basis, so the submission went, Exhibit D
was properly issued with regards to its author;







[19.11] Section 7 was substantially
amended by the Amendment Act 14 of 1995. In order to properly
appreciate the submission of Mr Sibeya, I quote the amended section 7
in full:







7. (1) The Minister may enter
into agreement with –








  1. any board, council or body or
    persons established by statute whether in Namibia or elsewhere;









  1. any department or branch of a
    foreign government having statutory functions with regard to trade
    metrology; or









  1. any laboratory, workshop or other
    establishment, whether public or private, and whether in Namibia or
    elsewhere, which is duly accredited, licensed or otherwise
    authorised by any board, council or body or department or branch or
    a foreign government referred to in paragraphs (a) and (b) to
    perform functions with regard to trade metrology,








to be a metrology agency for the
performance of any function under this Act.







(2) The Minister shall give notice
in the Gazette of any agreement entered into under subsection (1) and
any such agreement shall take effect for the purposes of this Act
upon its publication.”







[19.12] A similar submission was also
made by the State during the Magistrate’s Court proceedings. It
appears from pages 141 to 143 of the appeal
record that the State relied on an alleged agreement between the
Namibian and the South African Governments in terms of which the SABS
would execute certain functions under the Trade Metrology Act on
behalf of the Namibian Government. It was submitted that this
agreement was concluded during 1991. No reference was made to any
notice given by the Minister in the Government Gazette of any such
agreement as contemplated by section 7 (2) of the Trade Metrology Act
(as amended), or its publication in the Gazette. Likewise no such
reference appeared in the original heads of argument of the
respondent, nor was I referred to any such notice or publication in
terms of section 7 (2) during argument on appeal;







[19.13] During the course of the
appeal proceedings I enquired from both Mr Sibeya and Mr Olivier if
they have any knowledge of any notice and publication in the Gazette
of the alleged agreement as contemplated by the said section 7 (2).
Both undertook to make the necessary investigations and, if anything
could be found, to cause such publication to be delivered to me in
chambers before close of business the following day. In order to
expedite the finalisation of the appeal, I requested both counsel to
exchange any such information found, between each other and invited
them to make further written submissions thereon before close of
business on 6 April 2006;







[19.14] As a consequence of the above
arrangement, respondent caused delivery to me, of a letter issued by
the Minister of Trade and Industry dated 29 June 2004 addressed to
the Chief Executive Officer of the Road Authority of Namibia. I was
also furnished with further heads of argument by both Mr Sibeya and
Mr Olivier. Under cover of the supplementary heads of Mr Sibeya, an
agreement between the Government of Namibia and The Council of the
South African Bureau of Standards dated July 1991 was presented. I
will hereafter deal with the submissions and issues which arise from
the aforegoing.







[19.15] I will firstly deal with the
letter of 29 June 2004 which has the following text:







APPOINTMENT OF A METROLOGY
AGENCY







This letter serves to inform you
that in terms of Section 7 of the Trade Metrology Act, 1973 (Act No.
77 of 1973) as amended, the Minister of Trade and Industry has, from
time to time, assigned certain functions to the South African Bureau
of Standards (SABS), including the functions of a Metrology Agency.
Additionally, the government entered into an Agreement in 1991 in
terms of which the SABS renders certain services and performs certain
functions within the Republic of Namibia.







Mr D Swarts, a qualified
Verification Officer is hereby appointed to conduct the verification
of six (6) road vehicle weigh bridges (scales) in an agreed period
not exceeding one (1) calendar month from the date of assumption of
duties with the Road Authority (RA) of Namibia. The verification
costs are borne by the client owner of the aforementioned weigh
bridges.







[19.16] As far as the alleged
assignment of “functions” referred to in the first
paragraph of the letter is concerned, I again point out that before
an agreement relating to an assignment of functions in terms of
section 7 (1) of the Trade Metrology Act could take effect, notice
and publication thereof in the Gazette should occur under section 7
(2). I was not referred to any such notice or publication in the
Government Gazette in terms of section 7 (2) of the Trade Metrology
Act;







[19.17] In terms of section 224 of the
Criminal Procedure Act, 1977, I am required to take judicial notice
of any law or matter published in a publication which purports to be
the Government Gazette and of any law which purports to be published
under the superintendence or authority of the Government Printer;







[19.18] The aforegoing does, of
course, not mean that section 224 of the Criminal Procedure Act
requires me to take judicial notice of the contents of the letter of
29 June 2004. I nevertheless refer to its contents with regards to
the, albeit rather vague, reference to an alleged assignment of
functions to the SABS by the Minister in terms of section 7 of the
Trade Metrology Act;




[19.19] It has been held that, since
judicial notice is taken of the matters referred to in section 224 of
the Criminal Procedure Act, it is not necessary to hand in a copy of
the relevant Gazette to Court in order to admit same as part of the
record or to make formal production thereof in evidence. I refer to S
v Hoosen, 1963 (2) SA 340 (N), at 341 G; S v Mbatha, 1963 (4) SA 476
(N), at 477 H and
S v Di Stefano, 1977 (1) SA 770 (C), at 773;







[19.20] The least however, which is
expected of the State – bearing the onus of proof in proceedings of
this nature (and should it wish to rely on a particular publication
in the Government Gazette) - is to produce to the Court a specific
reference of the Gazette in which the relevant publication occurred.
That is also the import of the dictum in S v Di Stefano at 773
D – E. It cannot be expected of a Court to wade and search
through the vast number of notices given in the Government Gazette,
often ranging over a period of many years, in order to ascertain if
any relevant Government notice concerning a particular subject-matter
has been published. I may add that I have searched the annotations
and references to the Trade Metrology Act, 1973, as contained in the
work “Index to the laws of Namibia” published by
the Legal Assistance Centre (as updated to 30 June 2003). It does
not contain any reference to a Government Notice issued under section
7 of the Trade Metrology Act (as amended). In his supplementary heads
of argument Mr Olivier submits that he did a similar search which
also did not reveal anything;







[19.21] I am thus unable to take
judicial notice of any assignment of functions under the Trade
Metrology Act (as is seemingly alleged in the letter of 29 June 2004)
and as contemplated by the current sections 7 (1) and 7 (2) of that
Act;







[19.22] The letter of 29 June 2004
additionally refers to an alleged agreement concluded by the Namibian
Government in 1991, whereunder the SABS would render certain
services. This could obviously not have been an agreement as
contemplated by sections 7 (1) and 7 (2) of the current Trade
Metrology Act, since the current section 7 was only introduced by
virtue of Amendment Act No. 14 of 1995;







[19.23] As already stated, an
agreement of 1991 between the Government of Namibia and the SABS was
produced by respondent under cover of its supplementary heads of 6
April 2006;







[19.24] I may add that the earlier
provisions of section 7 stated that “The Minister may, after
consultation with council, assign in writing to any statutory body
the carrying out, subject to such conditions and requirements as may
be prescribed by regulation, of any function specified in this Act”
;




[19.25] The aforesaid 1991 agreement
does not contain any assignment to the SABS of the specific functions
of an “inspector”, as defined in section 1 read with
section 3 of the Trade Metrology Act;







[19.26] In view of the absence of an
assignment of the aforesaid nature in the 1991 agreement, I expressly
leave open the question if - given the definition of the term
statutory body” as contained in section 1 of the Trade
Metrology Act - section 7 (in terms of its aforementioned earlier
wording) would have empowered the Minister, after the independence of
Namibia, to assign any powers to a foreign statutory body such as the
SABS;







[19.27] The last aspect set out in the
letter of 29 June 2004, refers to the appointment of a certain Mr D
Swarts as a qualified verification officer. This aspect was not
relied by the State in the Magistrate’s Court proceedings, nor did
it form part of the argument on appeal. Since this aspect is
referred to by the State in the supplementary heads of Mr Sibeya, I
will deal therewith:







[19.27.1] In terms of section 3 of the
Trade Metrology Act quoted above, the Minister of Trade and Industry
is entitled to appoint inspectors;







[19.27.2] I am of the view that the
letter of 29 June 2004 can in this respect also not assist the
respondent nor render Exhibit D a valid certificate in terms of
section 87 by virtue of the following:







[a] It does not appear from the letter
of 29 June 2004 that the Minister purported to appoint Mr D Swarts as
an inspector in terms of section 3 of the Trade Metrology Act,
but rather as a verification officer. Indeed section 3 does
not make provision for an appointment as a verification officer. An
appointment of a verification officer (as an alternative to an
appointment as an inspector), was only made possible by virtue
of later amendments of the Trade Metrology Act in South Africa which
were never made applicable to Namibia;







[b] Even if the letter of 29 June 2004
can be interpreted as an appointment of a Mr D Swarts as an inspector
under section 3, it does not appear ex facie Exhibit D that it
was issued by a Mr D Swarts. No link has thus been established
between such appointment and Exhibit D;







[c] Although a reference is contained
in the evidence before the Magistrate’s Court concerning the author
of Exhibit D, witness Malinga, at Record 55 – 56, appears to be
uncertain about the identity of the author of Exhibit D. One
possibility which he mentioned was a certain “Mr Swart”. Apart
from this uncertainty, there is also no other evidence linking this
“Mr Swart” to the “Mr D Swarts”, who is referred to in the
letter of 29 June 2004 (i.e if this at all refers to one and the same
person). This aspect is in any event not strictly relevant, due to
the above finding that it should appear ex facie a proper
certificate issued under section 87 of the Road Transport Act, that
it was issued by an inspector as defined in section 1 (read with
section 3) of the Trade Metrology Act. The latter is not the case
with Exhibit D.



[20] In view of the aforegoing, I come
to the conclusion that Exhibit D does not meet the requirements of a
certificate as required by section 87 of the Road Transport Act. The
restrictive and strict interpretation which I am constrained to apply
in respect of the requirements pertaining to such certificate,
fortifies this conclusion.







[21] I therefore conclude that the
Magistrate has erred when she found (at Record, 184) that in
terms of section 87, the State presented a valid certificate that was
issued by an “inspector” as defined by section 1 of the
Trade Metrology Act. The learned Magistrate also erred in seemingly
relying on section 7 of the Trade Metrology Act in arriving at the
conclusion that Exhibit D was valid (at Record, 184). It
follows that the learned Magistrate erred in finding (at Record,
184
) that the presumption as contained in section 87 has come
into operation.







[22] In view of this conclusion
reached, it is not necessary to consider appellants’ other grounds
of appeal concerning the further contents of Exhibit D or the
traceability issue as referred to under sub-paragraphs [5.3.2] and
[5.4] above.







[23] A further issue which arises from
this appeal, requires consideration: In respondent’s heads of
argument on appeal reliance was also placed on the presumption
contained in Regulation 267 (1) of the Regulations made under section
91 of the Road Transport Act:







[23.1] Regulation 267 (1) reads as
follows:







267. (1) If, in a prosecution
for an offence under regulations 253 to 262 inclusive, an allegation
is made in the charge sheet or summons in relation to –








  1. the gross vehicle mass;



  2. the gross axle mass;



  3. the gross axle unit mass load;



  4. the gross combination mass;



  5. the net power in kilowatts of any
    bus or goods vehicle;



  6. the permissible maximum vehicle
    mass referred to in regulation 255;



  7. the permissible maximum
    combination mass referred to in regulation 256; or



  8. the permissible maximum axle mass
    load or maximum axle unit mass load, referred to in regulation 253
    or 254 respectively.




The allegation is, in the absence
of evidence to the contrary, presumed to be correct.







[23.2] In respondent’s heads it was
contended that section 87 of the Road Transport Act should be read in
conjunction with Regulation 267. Upon my enquiry – and after
hearing argument of Mr Olivier on this issue – Mr Sibeya conceded
that Regulation 267 (1) should be read subject to section 87 of the
Road Transport Act. He conceded that the presumption contained in
Regulation 267 - concerning the correctness of the actual maximum
load of an axle unit as alleged in the charge sheet – would only
come into operation once the presumption in section 87 was invoked;







[23.3] The latter would obviously only
occur once the State produces a proper certificate as contemplated by
section 87;




[23.4] The effect of the above
interpretation is that Regulation 267 is not an overriding
presumption assisting the State (irrespective of whether or not the
presumption set out in section 87 is invoked), but should, for the
purposes of the actual axle mass load of a vehicle or axle unit as
alleged in the charge sheet, only come into operation once the
presumption contained in section 87 has been invoked (or, for that
matter, the State presents expert evidence on the proper functioning
of the weighbridge in the absence of a certificate contemplated by
section 87). I am of the view that the aforesaid concession has
correctly been made by Mr Sibeya. I come to this conclusion for the
following reasons:







[23.4.1] It is true that the Minister
enjoys wide ranging powers to make regulations under section 91 of
the Road Transport Act. I, inter alia, refer to sections 91
(1) and (2) read with section 91 (2) (iv) of the Road Transport Act;







[23.4.2] An interpretation contrary to
the above, and which favours the operation of Regulation 267 to
presume a measured axle unit mass load to be correct once it is
alleged in the charge sheet (without expert evidence and irrespective
of whether or not the presumption contained in section 87 is
invoked), would directly concern the essential content and effect of
section 87 and in fact render its terms and provisions meaningless:
If the latter interpretation is favoured, all that the State would be
required to do, is simply to rely on the presumption contained in
Regulation 267, namely that the axle unit mass load is correct,
without any need to invoke the presumption contained in section 87;



[23.4.3] It is a recognised principle
that regulations should be interpreted in conjunction with the terms
of the enabling statute. It is not permissible to treat the statute
and a regulation made thereunder as a single piece of legislation.
Indeed the proper approach is that the statute must be interpreted
before the regulation is looked at and that the regulation may not
cut down or enlarge (and thus generally alter) the meaning of the
statute. I refer to Moodley v Minister of Education and
Culture, House of Delegates,
1989 (3) SA 221 (AD), per
Hoexter JA, at 233 E – F
and Hamilton-Brown v
Chief Registrar of Deeds,
1978 (4) SA 735 (T), per
Nicholas J, at 737 C – D.







[23.4.4] A fortiori, I
conclude, it is not permissible for a regulation to negate or
negative the essential contents or purpose of a provision of its
enabling statute;







[23.4.5] In conclusion, an
interpretation of regulation 267 as contended for in paragraphs
[23.2] and [23.4] above:








  1. Gives effect, and does not negate,
    the true and proper meaning of section 87 of the Road Transport Act;









  1. Accords with the well recognised
    presumption of validity which favours a construction which will
    uphold subordinate legislation (such as, for instance, Regulation
    267) rather than declaring same to be ultra vires (Compare:
    Hamilton Brown’s case, supra). This principle was
    expressed and approved in Port Elizabeth Municipality v Uitenhage
    Municipality, 1971 (1) SA 724 (A), at 738 D
    ;









  1. Accords with the principle that a
    presumption in the nature of Regulation 267 should be restrictively
    interpreted. The principles underlying this approach have already
    been dealt with earlier.








[23.5] I thus conclude that Regulation
267 (1) should be interpreted subject to section 87 of the Road
Transport Act and to the extent that the State is only entitled to
rely on the presumption created in its favour by section 267 (1) read
with section 267 (1) (a), (b), (c) and (d) thereof,







[23.5.1] once the presumption
contained in section 87 is invoked. The latter, of course, occurs
when a certificate as contemplated by section 87 is produced;




[23.5.2] or – in the absence of a
section 87 certificate - presents the requisite expert evidence on
the proper functioning of the weighbridge;







[23.6] Since the presumption contained
in section 87 was never invoked (and no expert evidence as aforesaid,
was presented by the State), the presumption contained in Regulation
267 (1) did not operate in favour of the State in this matter.







[24] Accordingly the State has not
discharged its onus of proof in respect of the correctness or the
proper functioning of the weighbridge concerned and has thus not
discharged its onus of proof in respect of the correctness of the
excessive axle unit mass load as alleged in the charge sheet.







[25] In the result the appeal is
upheld and the convictions and sentences of both appellants are set
aside.











______________________________



TÖTEMEYER, AJ















































COUNSEL FOR APPELLANTS: Mr J H
Olivier



Jan Olivier &
Co.







COUNSEL FOR RESPONDENT: Mr O S Sibeya



Office of
the Prosecutor-General