THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable

CASE NUMBER 473/2001

In the matter between :

INTERLINK POSTAL COURIER SA (PTY) LTD
Appellant

and

THE SOUTH AFRICAN POST OFFICE LTD
Respondent
___________________________________________________________________________

Coram:
MARAIS, ZULMAN, CAMERON, CLOETE et LEWIS JJA
Heard:
24 FEBRUARY 2003
Delivered:
27 MARCH 2003

The interpretation of s 16 of the Postal Services Act, 124 of 1998 in relation to the
provision of a ‘courier service’.
___________________________________________________________________________

J U D G M E N T
__________________________________________________________________________
MARAIS JA/

MARAIS JA
[1] I have had the benefit of reading the judgment of my learned brother
Zulman JA. I share his view as to the lack of merit in the preliminary point but I
am unable to share his view as to the fate of the appeal.
[2] I do not consider the meaning ascribed by the court a quo to the words
“courier services” to be a restrictive meaning. In my view, the ordinary meaning
of those words does not encompass the depositing in a letter box at a given
address of the items listed in paragraph 1 (a) of Schedule 2 when they are
intended to be delivered to a particular person.
[3] It is common knowledge that the facilities for the reception of such items
which exist in residential and professional and business properties in South
Africa range from rudimentary to highly sophisticated.

To say that a letter addressed not merely to a particular address but to a named
addressee at that address and which is pushed through the slot provided in a gate
or door, and which letter may lie upon the floor or in a letter box until someone
(not necessarily the addressee) notices it and picks it up or takes it out, has been
delivered by a courier to the intended recipient is, to my way of thinking, to
debase the commonly understood concept of a courier service.
[4] It is so that the dictionary meanings of the word “courier” all envisage a
delivery of something but they obviously do not include a common or garden
postman who “delivers” by leaving an item at a street address. That this is so is,
I think, reinforced by the structure of the Act which clearly envisages a
distinction between ordinary postal services (which plainly postulate address
rather than addressee deliveries) and courier services. To read the latter as
requiring merely address and not personal deliveries would elide unacceptably

the distinction that lies at the heart of s 16. Accordingly, where a letter is
addressed to a named person and a courier service is to be provided then it is to
that person that delivery must take place – not simply to the address at which
that person is thought to be.  It is conceivable of course that a courier might be
engaged to deliver a letter or parcel to a particular place as opposed to a
particular person. But where the method of delivery to a named intended
recipient is merely to leave the item at an address at which the intended recipient
might or might not be, or at which the item delivered might be lost or
misappropriated or put aside or forgotten before it reaches the recipient’s hands,
I do not believe that it can be said, within the meaning of the Act, to have been
delivered to the intended recipient by means of a courier service. The method of
“delivery” employed has been no different from that of a common or garden
postman.

[5] That there are other elements present in the service provided which are
characteristic of a courier service takes the matter no further. If a critical element
of a courier service is lacking (and in my view actual delivery of the item to the
named intended recipient or the intended recipient’s authorised agent to accept
delivery, as opposed to leaving it at his, her or its supposed address, is such an
element), it cannot be classified as a courier service.
[6] I reach that conclusion simply by giving to the words “courier service”
what I take to be their ordinary meaning, a meaning which seems to me to be
underscored by the context in which they are used in the Act. I leave out of
account such evidence as there might have been as to the meaning given to the
expression by the trade.
[7] It is also of some significance that the Act itself, in dealing with the future
licensing requirements for a courier service (s16(5)(d)(ii)), requires that an

applicant for a licence must undertake, inter alia, to ‘track and trace the
whereabouts of any item received or collected for delivery by such a person’s
business undertaking’. If it were contemplated that delivery to a street address,
where no evidence of receipt of an item would be obtained, was sufficient for
such delivery, it is hard to see how this requirement could be met. How would a
courier track and trace an item if it had been simply left at a street address?
While the subsection does not, of course, define the nature of a courier service,
and while it relates to undertakings to be made in future by an applicant for a
licence, it gives at least some indication of what the legislature meant by
‘courier’. Leaving an item in a postbox does not allow for meaningful tracking
and tracing, and thus it cannot have been intended that that form of delivery
would suffice to qualify the service as a courier service.

[8] It is ordered that the appeal be and is hereby dismissed with costs
including the costs of two counsel.

______________________
R M MARAIS

JUDGE OF APPEAL

CAMERON JA )
LEWIS JA         )
CONCUR

ZULMAN JA

INTRODUCTION
[1]  The issue in this appeal concerns the appellant’s right to conduct a ‘courier
service’ in  terms of the Postal Services Act, as amended1 (the Act). The court a
quo (Fitzgerald AJ) interdicted and prohibited the appellant (the first respondent
a quo), at the instance of the respondent (the applicant a quo) from inter
alia,providing any type of  'reserved postal service which entails street delivery of postal
articles'.  The judgment is reported2. The appeal is with the leave of the court a
quo.

124 of 1998
2002(1) SA 221 (C)

PRELIMINARY POINT
[2] In argument before this Court the appellant’s counsel sought to reintroduce a
point in limine, which had been expressly conceded and abandoned in the court
a quo.  The point is this. At the time when the application was heard in the Court
a quo, the respondent had not yet been issued a licence as contemplated in s
16(3) of the Act. Accordingly the appellant contended that the respondent had
no locus standi to complain that the appellant’s street deliveries exceed the
bounds of a ‘courier service’ and infringed the respondent’s right to conduct a
'reserved postal service'. The basis for seeking to resurrect the point is that the
concession is one of law and is accordingly not binding on the appellant. The
respondent opposes the reintroduction of the point on a number of legal grounds.
I believe that there is no merit in the point, if only for the simple reason that the
respondent had a clear legal interest in the subject matter of the dispute.
However, in the light of the conclusion that I have come to on the merits of the
matter, it is unnecessary to consider the point any further.
THE ACT
[3]  The Post Office Act3 was amended in certain respects and repealed in others
by the Act. Certain sections of the Act came into operation on 1 January 1999

44 of 1958

whilst the remainder came into operation on 1 April 2000.  It is to be noted that
in so far as this appeal is concerned with the meaning of English words that the
English text of the Act was signed by the President.
[4] Chapter lll of the Act is headed ‘REGULATION OF POSTAL SERVICES’.
The chapter contains some 14 sections (ss 15 to 28). Of direct relevance to the
matter at issue are ss 15(1) and 16(5) which provide as follows -
'15(1) Subject to the provisions of this Act, no person may operate a reserved postal
service except under and in accordance with a licence issued to that person in terms
of this Chapter.'

'16(5) (a)
Any person who, immediately before the date of commencement of this
section provided a courier service of a type contemplated in Schedule
1, must be regarded as being licensed to provide such a courier service,
subject to paragraph (b).

(b)
A person may not be regarded as being licensed in terms of paragraph
(a) if that person has failed to apply to the Minister through the
Regulator for such a licence within 90 days after the date of
commencement of this section or within such extended period as the
Regulator may allow.

(c)
After receipt of an application in terms of paragraph (b) the Minister
must, subject to paragraph (d), grant the application and thereafter the
Regulator must issue a licence to the applicant.

(d)
A person may not be licensed to provide a courier service in terms of
this subsection unless that person undertakes -

(i)
to receive, collect and deliver items contemplated in item 1 (a)
of Schedule 1;

(ii)
to track and trace the whereabouts of any item received or

collected for delivery by such person’s business undertaking;

(iii)
to deliver items within a definite time, in the case of deliveries
across international borders;

(iv)
to deliver items within the Republic on the date of receipt
thereof or at the latest by 13:00 on the next working day; or

(v)
to clear items through customs, where applicable.'

THE ABSENCE OF A LICENCE
[5]  The respondent no longer appears to attack the court a quo’s conclusion that
the appellant is to be regarded as being licensed to provide a 'courier service',
notwithstanding the fact that the appellant might have provided such a service
unlawfully prior to the commencement of s16.4  I am in respectful agreement
with this conclusion.
THE CRUX OF THE JUDGMENT A QUO
[6] The crux of the judgment of the Court a quo on the essential matter now at
issue is encapsulated in the following remarks of Fitzgerald AJ5 -
'Having found that the first, third and fourth respondents are to be regarded as being
licensed to provide a courier service, I now turn to deal with the further submission of
Mr Burger [counsel representing the applicant in the Court a quo] that, in any event,
and even in regard to these respondents, a courier service does not involve the speed
delivery of postal items but rather, as he put it, 'door-to-door deliveries'.
It is apparent that no definition of courier service as used in s 16 is to be found in the
Act.  In this regard Mr Burger submitted that, where a statute deals with a particular
trade or business and employs a term  which is used in that trade or business, such

Judgment of the court a quo 231B
232G – 234C

term should be given the meaning used in that particular trade or business.  (See
Kommissaris van Doeane en Aksyns v Mincer Motors Bpk 1959 (1) SA 114 (A) at
119.)
Mr Burger submitted further that, insofar as the term 'courier service' is used in the
context of a statute regulating the postal industry, it is proper to have regard to its
meaning 'in that trade'.  It is relevant in this regard that in the representations on the
proposed Postal Bill of 1998, to which I have referred above, the express carrier
industry stated in para 2.5 as follows:
'(I)t is important to take note and be mindful of the fact that the express carrier
industry provides that which is generally referred to as a "value added service",
including, inter alia, unlike the traditional services rendered by the Postal Company,
door to door pick-up and delivery services, customs clearance services, meticulous
proof of delivery including a track and trace service which enables a client to pinpoint
the exact location of an article at any particular moment in time.  These services are
provided on an extremely time definite basis with the result that the normal business
administration is not slowed down and/or hampered by delays.'
In answer, Mr Heunis [counsel representing the respondent in the Court a quo]
submitted that statutes are as a rule addressed to the general public and not to a
particular trade or section of the community.  Therefore, so he continued, our Courts
are reluctant to draw the conclusion that words and expressions in a statute are used in
a technical sense.  (See Association of Amusement and Novelty Machine Operators v
Minister of Justice and Another 1980 (2) SA 636 (A) at 660.)
There is indeed no definition of the term 'courier service' in the Act.  It is also correct
that s 16(5)(d) thereof does, as Mr Heunis contended provide an indication of the
attributes of a courier service.  [The learned acting judge quoted the section and
continued]
Accordingly, Mr Heunis submitted that I should determine the nature of courier
services by reference solely to this section and to the ordinary meaning of the words
used therein.
Mr Burger contended, however, that s 16(5)(d) itself contains words that must be
given a meaning, viz 'delivery' and emphasised that these words were used in the
context of a courier service which, as aforesaid, is itself not defined in the Act.
While it is indeed so that the absence of any specific definition of the term 'courier
services' in the Act is deliberate, and while acknowledging the belated inclusion
therein at s16(5), it seems to me that there is merit in these contentions of Mr Burger.
Accordingly, were I to give the language used in s16(5)(d) its ordinary, grammatical
meaning, as contended by Mr Heunis, I would, in my view, thereby ignore that the
Legislature did, in terms of the Act, intend to preserve a statutory monopoly (albeit
while permitting courier services within the activities of reserved postal services) for
the applicant.
Accordingly, and having regard to the attributes of a courier service as described in the
representations made on behalf of the industry (and to which, albeit in another context,
Mr Heunis submitted I should have regard), the language used in s 16(5)(d), in my
view, falls to be restrictively interpreted to exclude (notwithstanding the apparently

unqualified use of the words 'deliver' and 'delivery' therein) street to street deliveries
by a courier service.
This latter activity is so traditionally a fundamental characteristic of the activities of
the applicant that to ignore the meaning ascribed thereto in the trade in the
interpretation of s16(5)(d) would serve merely to undermine the obvious intention of
the Act, namely to preserve the statutory monopoly of the applicant.  A contrary
construction would, in essence, equate a courier service with that reserved service
provided by the applicant, save for speed of delivery, and the alleged powers to track
and trace which are said to be particular to the courier service.  This seems
unwarranted.
In all the circumstances I am of the view that Mr Burger is correct in submitting that
street to street deliveries of postal articles, as opposed to door-to-door pick up and
delivery services, fall outside the services which are lawfully required to be provided
by a courier service.'

[7] The central issue raised on appeal is whether Fitzgerald AJ was correct in
finding that the appellant was not to be regarded as providing a  ‘courier service’
within the meaning of the Act to the extent that it delivered postal articles to
street addresses as opposed to making 'door to door' deliveries.
[8] Schedule 2 of the Act, which is headed ‘unreserved postal services’, deals (in its
amended form) with ‘courier services’ as follows-

‘1.
Unreserved postal services include –
(a)
all letters, postcards, printed matter, small parcels and other postal
articles that fall outside the ambit of the reserved services set out in
Schedule 1 up to and including thirty kilograms;

(b)
courier services in respect of items mentioned in paragraph (a); and

(c)
any other postal service that falls outside the ambit of the reserved
services as set out in Schedule 1’ (underlining supplied).

In terms of item 1 of Schedule 1 (as amended) 'reserved postal services' include-
‘(a)
all letters, postcards, printed matter, small parcels and other postal
articles subject to the mass or size limitations set out in item 3;

(b)
issuing of postage stamps; and

(c)
the provision of roadside collection and address boxes.’

Item 2 of Schedule 1 (as amended) provides that-
'2.
For purposes of this Schedule, a letter means any form of written
communication or other document, article or object that is directed
to a specific person or persons or specific address and is to be
conveyed other than by electronic means and includes a parcel,
package or wrapper containing any such communication or article
conforming to the mass or size limitations set out in item 3.'

Item 3 of Schedule 1 (as amended) provides that-
'The reserved postal services include all items described in items 1(a) and 2 of a
mass up to and including one kilogram or size which enables it to fit into a
rectangular box with the following dimensions:

length 458 mm
width 324 mm
thickness 100 mm

Cylinders having a maximum length of 458 mm and 100 mm thickness and or a
mass of up to one kilogram are regarded as letters.'

Item 4 of Schedule 1 sets out exemptions from letter mail, which are not subject
to licensing in terms of the Act.  These exemptions are not relevant for present
purposes.

[9] The Act defines 'courier service' in s 1 as meaning 'a service provided by a person
licensed or registered to provide such a service in terms of this Act.'   This definition
affords no assistance in determining what is embraced in a 'courier service'.
[10] Before this Court, counsel for the respondent submitted that it is plain from
a reading of the Act as a whole that a distinction is drawn between a 'reserved
postal service' and a 'courier' service' and that, in counsel's words, 'never the twain
shall meet'.   Counsel conceded that this distinction was essential to his
argument.  Indeed it is, for without it, counsel could not go on to submit, as he
did, that whatever the ambit of a courier service may be, street deliveries are a
'reserved postal service' which only the postal company can perform.
[11] Counsel's cardinal submission is not correct.  Section 16(5)(a) expressly
and in terms contemplates that a person shall be regarded as licensed to provide
a courier service 'of a type contemplated in Schedule 1' which, it is apparent (as
both counsel conceded), must mean 'in respect of' or 'in regard to' the items
specified in Schedule 1. Item 1 refers to 'letters, postcards, printed matter, small parcels
and other postal articles subject to the mass or size limitation set out item 3' and item 2
defines a 'letter' as 'any form of written communication or other document,
article or object that is directed to a specific person or persons or specific
address...' Section 16(5)(a) therefore contemplates a 'courier service' including

delivery of letters etc – precisely the reserved postal service which Fitzgerald AJ
held was reserved to the respondent.
[12] The same subsection   ss 5(a)   makes the deeming provision, which it
embodies 'subject to paragraph (b)'. It does not make the deeming provision subject
to pararagraph (d).  Paragraph (d) requires undertakings by a person who is to be
issued with a licence.  It is of no assistance in interpreting what is meant by a
courier service for the purposes of s 5(a). It is a regulatory provision, which
deals with the future   not the past.  Had the Legislature intended that it was
only a person who had, before the commencement of the Act, performed the
services in paragraph (d) who would be deemed to perform courier services in
respect of reserved postal articles, it would have made the deeming provision in
paragraph (a) subject to this condition also. It did not do so.  The reason is that
the Legislature recognised that couriers were illegally performing reserved
postal services and intended to allow them to do so legally in the future,
provided certain undertakings were given.  Those undertakings were to be a
condition for the issue of the license   not a condition for the person to be
recognised as having provided a courier service as at the date of commencement
of the Act.  Furthermore it is to my mind significant that not even in s 16(5)(d)
did the Legislature require an applicant for a license to undertake to perform a

door-to-door delivery service only.  But even if regard is had to s 16(5)(d) the
words ‘deliver’ and ‘delivery’ used in section 16(5)(d)  are not,  as pointed out
by the learned judge a quo, defined.  There is in my view no sound justification
for giving the words read in conjunction with the words 'courier service', the
narrow meaning given to them by Fitzgerald J so as to exclude deliveries to
street addresses in the sense understood by the court a quo.  To my mind the
ordinary meaning of the words 'deliver' and 'delivery' in the context of a courier
service is not to be disturbed.  The South African Concise Oxford Dictionary
gives as one of the meanings of the verb ‘deliver’ - to ‘bring and hand over (a
letter or goods) to the appropriate recipient’ and the noun ‘delivery’ as inter alia
‘the act in of delivering something, especially letters, goods or services.’ The
Encarta World English Dictionary defines ‘delivery’ in relation to mail as the
‘the carrying of sth [something] to a particular person or to a particular address’.
It is in this ordinary sense that the words are used in the Act.
[13] I find nothing in the scheme or wording of the Act which supports the
restrictive interpretation given to the phrase ‘courier service’ by the court a quo.
On the contrary, if one has proper regard to the ordinary meaning of the words,
with reference to the context in which they are used as set forth in various
dictionaries, I see no legitimate basis for excluding street deliveries of postal

items from the operation of a ‘courier service’ as contemplated in the Act. As
pointed out by Kotze JA in Association of Amusement and Novelty Machine
Operators and Another v Minister of Justice and Another6
‘The normal and permissible method available to a court to ascertain the ordinary
meaning of words is to turn to authoritative dictionaries – the most reliable sources
of information in regard to the general accepted usage of words - for aid.'

Amongst such authoratative dictionaries one may usefully refer to the South
African Oxford English Dictionary7 where the meaning of the word ‘courier’ is
given as ‘A messenger who transports goods or documents in haste’.  Black’s
Law Dictionary8 gives the following as the meaning of the word ‘courier’- ‘A
messenger esp. one who delivers parcels, packages, and the like’.  The Encarta
World English Dictionary9 defines the word ‘courier’ as follows-  ‘A person or
company that delivers documents or small and valuable packages by hand’.  No
dictionary to which I have had regard contemplates delivery to a person as a
characteristic, much less an essential characteristic, of the service provided by a
courier. There are many reasons why a person would employ a courier, other
than the added security which person to person delivery, if offered by such a

1980 (2) SA 636 (A) at 660 F-G
2002
Seventh Edition 1999
Bloomsbury 1999

courier, affords.  Two that immediately spring to mind are speed and reliability
of the service offered. Neither of these excludes street to street deliveries.
[14] Accordingly, the words 'deliver', 'delivery', and ‘courier service’ are to be
given their ordinary natural grammatical meaning in their context in the Act.
This is so because no special meaning is indicated, and this would also  accord
with trite principle of giving effect to the intention of the Legislature as
evidenced by the words it uses, read in their ‘ordinary sense’ and in context.
(See for example, Venter v R10, Union Government (Minister of Finance) v
Mack11, Bhyat v Commissioner for Immigration12).
[15] The respondent submitted that it was proper for Fitzgerald AJ to have had
regard to the meaning ‘in the trade’ of the term ‘courier’ (Cf Kommissaris Van
Doeane en Aksyns v Mincer Motors Bpk13).  Reliance was placed upon extracts
from written submissions made to Parliament on behalf of 23 members of the
Express Courier Industry prior to the Act being assented to on 20 March 1998.  I
immediately point out that the appellant states that the respondent has not shown
that the interpretation given by the 23 members is accepted by the majority of
the members of the industry and that some 304 other known providers of courier

1907 TS 910 at 913
1917 AD at 739
1932 AD 125 at 129
1959 (1) SA 114 (A)

services were not represented in the written representations in question.  This
statement is not challenged by the respondent. But that apart, as a general rule,
statutes are addressed to the general public and not to a particular trade or
section of the community.  Furthermore courts are reluctant to draw the
conclusion that words and expressions in a statute are used in a technical sense
(Association of Amusement and Novelty Machine Operators)14.
[16] The deponent to the respondent’s supplementary founding affidavit (Mr P F
Swart)15, ‘without attempting an all encompassing definition’, submits that, ‘the
following characteristics are the minimum elements which must be present
before  a postal service provider  will be categorised  as a courier service by the
postal industry:

36.1
Door-to-door collection and delivery (as opposed to street delivery to mail
boxes).  This would include collecting the item from a particular person and
delivering it in the hands of another.

36.2
A track and trace system, of which the most important components are
proof of delivery and the ability to determine the whereabouts of a postal
article at any given time.

(Supra) at 660 D - E
Swart is a senior manager, postal distribution of the respondent in the Western Cape and
describes himself as 'someone who has been closely involved in the postal industry for more than
7 years'.

36.3
The delivery of documents and parcels (as opposed to ordinary letter mail or
business accounts).

36.4
Express delivery within a guaranteed time frame and which is faster than
ordinary mail via the post office.

36.5
Value-added service, referring in fact to all of the above services in respect
of which the customer pays a premium (i.e. above ordinary mail tariffs).'

[17] The appellant in its answering affidavit deposed to by its chief executive
officer Mr J C Wessels16 denies that a ‘courier service’ provider must at least
have the characteristics listed by Swart in order to qualify as a courier for the
purposes of the Act and submits that the Legislature ‘clearly intended not to
assign a particular, technical meaning to the term ‘courier service’ and it must be
therefore be accorded its ordinary, grammatical meaning.’
[18] There is thus an obvious dispute of fact on the papers as to the proper
meaning of the words ‘courier service’ in the industry.  But in any event I am of
the view that the evidence of the 23 members of the Express Carrier Industry is
irrelevant and inadmissible to determine the meaning of the concept 'courier

Wessels founded a postal services business known as City Post RSA in 1995

service' in the Act.  This is so since I do not believe that the words are used in the
Act in any technical or special sense.   The following remarks of Steyn CJ in
Kommissaris van Doeane en Aksyns v Mincer Motors Bpk17 are instructive in
this regard:
‘Die eerste vraag is wat onder "motorkarre" in hierdie item verstaan moet word.  Die
appellant beroep hom op die reël dat waar 'n Wet vir 'n bepaalde bedryf bedoel is, hy
uitgelê moet word volgens die betekenis wat die woorde in daardie bedryf het, en
beweer dan dat hierdie item bedoel is vir die motorbedryf, dat die woord "motorkar"
in daardie bedryf 'n spesiale betekenis het wat 'n afleweringswa van die onderhawige
soort sou insluit, dat die Parlement die woord in bedoelde sin gebruik het, en dat hy
toegelaat moet word om die aangevoerde betekenis met getuienis te staaf.  Na my
mening gaan hierdie redenasie nie op nie.  Genoemde reël sou geld waar 'n woord of
uitdrukking in 'n bepaalde bedryf of sake-afdeling algemeen in 'n besondere sin
verstaan word deur die persone wat met die bedryf of sake-afdeling en die daarin
erkende taalgebruik vertroud is, en waar dit blyk dat die Wetgewer die woord of
uitdrukking in daardie sin gebesig het.  Die aanwending van die reël stuit in die
huidige geval teen verskillende moeilikhede.'

[19] Insofar as the submissions made to Parliament may be regarded as part of
the legislative history of the Act, they would, on the basis of ‘the approach
adopted by South African courts for more than a century'18, be inadmissible.
(See for example Mathiba and Others v Moschke19, Mavromati v Union
Exploration Import (Pty) Ltd20  and S v M en Andere21.)  In any event it is

1984 (3) SA 623 (A)
1959 (1) SA 114 at 119 B - E
1920 AD 354 at 362
Per Devenish – Interpretation of Statutes at 124
1949 (4) SA 917 (A) at 927
1979 (4) SA 1044 (BH) at 1048 A-C

significant that in defining 'courier service' in the circuitous manner that it did in
s1 of the Act, the Legislature appears not to have had regard to the submissions
made by certain members of the Express Carrier Industry in formulating a
definition, which accorded with their submissions.
[20] I do not accept the reasoning of Fitzgerald AJ that it is ‘the obvious intention
of the of the Act’ to ‘preserve the statutory monopoly of’ the applicant,  to permit
of street deliveries of postal articles. I believe that there is substance in the
contention advanced in the appellant’s heads of argument to the effect that the
intention underlying the inclusion of s16 was to permit persons to provide a
service complementary to, and in competition with that of the Post Office
thereby recognising the advantages of private enterprise and the constitutional
right of individuals to choose a trade occupation or profession.22  The balancing
of interests of the respondent, couriers such as the applicant and the general
public was achieved by the prescription of terms and conditions in the granting
of licenses to be issued to persons who had previously carried on the business of

The law appears to be developing slowly to allow some regard to be had to the legislative history of
unclear legislation   see the (separate concurring) judgment of Mokgoro J in Case and Another v
Minister of Safety and Security and Others Curtis v Minister of Safety and Security and Others  1996
(3) SA 617 (CC) at 624-5 paragraph 12, note 18; see also S v Makwanyane and Another 1995 (3) SA
391 at 404 – 5 paragraphs 12 – 15; even then the stage has not been reached where regard may be had
to submissions made by certain interested parties as opposed to statements of a Minister introducing a
Bill in Parliament.

Cf s 9 read with s 22 of the Constitution of the Republic of South Africa Act 108 of 1996

couriers prior to the enactment of the Act.   I also agree with the appellant’s
contention that the effect of the judgment of the court a quo would to a large
extent close the window of opportunity afforded by s 16 of the Act to the
appellant.
[21] In all of the circumstances I am of the view that the court a quo erred in
concluding that street deliveries of postal articles, as opposed to door-to-door
pickup and delivery services, fall outside the services, which may lawfully be
provided by a courier.
[22] I have had the benefit of reading the judgments of my learned brothers
Marais and Cloete JJA.  I respectfully disagree with Marais JA's view as to the
fate of the appeal.  I concur in the judgment of Cloete JA.
THE ORDER
[23] In my view the appellant should succeed in the point it raised on appeal and
should accordingly be awarded the costs of the appeal.  That success cannot,
however, carry the costs of the proceedings in the court a quo as the respondent
succeeded in obtaining the interdict embodied in paragraph 3 of the Court's
order,23 against which there was no appeal.  The third and fourth respondents in
the Court a quo did not appeal against paragraph 2 of the order and it cannot be

234 G - H

altered by this Court insofar as they are concerned. I would accordingly uphold
the appeal with costs and alter paragraph 2 of the order of the Court a quo so as
to delete the reference to the appellant (the first respondent a quo).

-------------------------------------

R H ZULMAN

JUDGE OF APPEAL

CLOETE JA/

[1] I have had the benefit of reading the judgments of my learned
colleagues Marais JA and Zulman JA. I respectfully agree with the latter
and, with equal respect, find myself unable to agree with the former.
[2] A courier is 'a messenger who transports goods or documents'.24
To my mind the essential characteristic of a courier service is the right on
the part of the customer to give directions to the courier. It is primarily the
mandate given by the customer and accepted by the courier which

24 South African Concise Oxford Dictionary

dictates the service to be provided and which distinguishes a courier
from what Marais JA terms a 'common or garden postman'. If the
mandate is to make personal delivery to a specific addressee, then
personal delivery must take place. The mandate can equally be to make
delivery to a post box at a specific address. The evidence discloses that
the appellant is able to do either.
[3] Once it is accepted, as it is by Marais JA, that a courier may be
engaged to deliver a letter or parcel to a particular place as opposed to a
particular person (or such person's agent), what is characterised by my
learned colleague as the 'critical element' of a courier service   delivery
to a person   is lacking and it cannot accordingly be a critical element in
the definition of a courier service.

[4] The fact that most of the appellant's customers choose street to
street deliveries does not derogate from the fact that the appellant is
subject to the directions of those who employ it. It is that characteristic,
and not the scale of the appellant's street to street deliveries, which is
decisive. Furthermore the fact that a letter will lie on the floor or in a
letterbox at its destination until someone picks it up does not to my mind
mean that it could not have been couriered there. As Zulman JA points
out, a courier service is not necessarily employed only because of the
added security which person to person delivery affords.
[5] I have been unable to find in any dictionary which I have
consulted25 and I am unable to discern in the Act itself, any requirement

25 The Oxford English Dictionary (2nd ed); The Shorter Oxford English Dictionary (3rd ed); The Concise Oxford
Dictionary (6th ed); South African Concise Oxford Dictionary;  Webster's Third New International Dictionary;
Webster's Revised Unabridged Dictionary; The Imperial Dictionary of the English Language; The Universal
English Dictionary; The American Heritage Dictionary of the English Language (4th ed); Encarta World English
Dictionary; Merriam-Webster Dictionary; West's Legal Thesaurus/Dictionary; Black's Law Dictionary (7th ed);

that delivery must be to a person before a service can be categorised as
a courier service.
[6] So far as the Act is concerned, I am unable, with respect, to find
any distinction in s 16, much less a distinction which lies at the heart of
that section, between what Marais JA terms 'ordinary postal services' on
the one hand, and a 'courier service', on the other. Subsection 4(a)
provides:
'A reserved postal service of the postal company contemplated in this
section, excluding a courier service in respect whereof the postal
company must be licensed or registered separately, may be provided
by a wholly-owned subsidiary of the postal

Butterworths Australian Legal Dictionary; and s.v. 'koerier', Woordeboek van die Afrikaanse Taal (Schoonees et
al), Kernwoordeboek van Afrikaans (De Villiers, Smuts and Eksteen), HAT (4th ed), Afrikaanse Woordeboek
(Terblanche and Odendaal) andVerklarende Afrikaanse Woordeboek (Labuschagne and Eksteen).

company, without such subsidiary being required to hold a licence in
terms of this Act if . . .'
That subsection contemplates that a reserved postal service includes a
courier service, otherwise it would not have been necessary for the
legislature to exclude a courier service. In addition, subsection 5(a)
provides:
'Any person who, immediately before the date of commencement of this
section provided a courier service of a type contemplated in Schedule
1, must be regarded as being licensed to provide such a courier service
. . .'.
The type of service contemplated in Schedule 1 is 'reserved postal
services'. A distinction between 'ordinary postal services' and courier
services is not to be found in the Act itself. Indeed, the former concept
nowhere appears in the Act. It is the consequence of an unwarranted
definition of courier services not dictated by the Act. But perhaps the
most telling feature of s 16 is that ss (5)(d) does not require a courier to
undertake personal deliveries only, as a condition for being granted a

licence. I do not interpret the 'track and trace' provision in s 16(5)(d)(ii) as
impliedly importing such a requirement. The phrase is nowhere defined
in the Act. The evidence shows that the service provided by the appellant
enables the appellant to establish the whereabouts of an item entrusted
to it at every stage from the time it is collected, up to and including the
time of delivery at a street address. That in my view constitutes
compliance with the section. In addition, should a customer require proof
of delivery, the signature of a recipient will be obtained. If indeed all a
licensed courier is permitted to do, is to make personal delivery, then this
essential limitation would surely have been included in s 16(5)(d), in
terms; but it is not.
[7] Section 16 of the Act clearly contemplates that couriers will
compete with the postal company in the provision of reserved postal

services. There is in my respectful view no basis, either on the ordinary
meaning of the phrase 'courier service' or to be found in the scheme of
the Act, for limiting that competition to person to person deliveries. And
once it is plain, as it is from s 16 of the Act, that competition is to be
allowed, it cannot be reasoned (as was done by the learned Judge in the
Court a quo) that street deliveries must be excluded from courier
services because this function was traditionally reserved for the postal
company: the whole purpose of s 16 is to break that monopoly.
[8] I would accordingly uphold the appeal with costs and alter the
order of the Court a quo  as proposed by Zulman JA.

………………
T D CLOETE
JUDGE OF APPEAL