Court name
Supreme Court
Case name
Trustco Insurance t/a Legal Shield Namibia and Another v Deed Registries Regulation Board and Others
Media neutral citation
[2011] NASC 10
Judge
Shivute CJ
















REPORTABLE



CASE NO.: SA 14/2010





IN
THE SUPREME COURT OF NAMIBIA








In
the matter between:













































TRUSTCO
INSURANCE LIMITED


t/a LEGAL
SHIELD NAMIBIA






FIRST
APPELLANT



KRÜGER,
VAN VUUREN & CO



SECOND
APPELLANT



and







DEEDS
REGISTRIES REGULATION BOARD



FIRST
RESPONDENT



REGISTRAR OF
DEEDS



SECOND
RESPONDENT



MINISTER OF
LANDS & RESETTLEMENT



THIRD
RESPONDENT



ATTORNEY-GENERAL,
GOVERNMENT OF


THE REPUBLIC
OF NAMIBIA






FOURTH
RESPONDENT



LAW SOCIETY
OF NAMIBIA



FIFTH
RESPONDENT



GOVERNMENT
OF THE REPUBLIC OF


NAMIBIA






SIXTH
RESPONDENT






CORAM:
Shivute CJ, Langa AJA et
O’Regan AJA





Heard
on:
04/04/2011





Delivered
on:
15/07/2011












APPEAL
JUDGMENT















O’REGAN
AJA:






  1. The
    first appellant, Trustco Insurance Limited t/a Legal Shield Namibia,
    is a short-term insurer registered in terms of the Short Term
    Insurance Act, 1998 and the second appellant, Krüger, Van
    Vuuren and Co, is a partnership of legal practitioners, duly
    authorized to act as legal practitioners in terms of the Legal
    Practitioners Act, 1995. The dispute upon which this appeal is
    based arises from the fact that the first appellant wishes to offer
    to its clients a free conveyancing service as part of its insurance
    package and to that end has entered into an agreement with the
    second appellant in terms of which the second appellant will provide
    conveyancing services at an hourly rate, rather than at the
    compulsory tariffs fixed by regulation for conveyancing work.







  1. The
    appellants launched proceedings in the High Court seeking an order,
    amongst other things, declaring that the relevant prescribed
    conveyancing tariffs are inconsistent with Article 21(1)(j) of the
    Constitution (the right to practise a profession and carry on any
    occupation, trade or business) as well as Article 18 of the
    Constitution (the right to fair and reasonable administrative
    action).







  1. The
    first respondent is the Deeds Registries Regulations Board (“the
    Board”), established in terms of section 9 of the Deeds
    Registries Act, 47 of 1937 (“the Deeds Registries Act”).
    The second respondent is the Registrar of Deeds. The third is the
    Minister of Lands and Resettlement (“the Minister”). The
    fourth is the Attorney General of the Republic of Namibia. The fifth
    is the Law Society of Namibia and the sixth is the Government of the
    Republic of Namibia.







  1. The
    Board is established to make the regulations authorized under
    section 10(1)(c) of the Deeds Registries Act.
    1
    The second respondent, the Registrar of Deeds, is required to
    approve the regulations after determining that they will be
    effective. The Board is also authorized under section 40 of the
    Sectional Titles Act, 66 of 1971,
    2
    to determine the fees to be charged for conveyancing work done in
    respect of property held under sectional title.








  1. Two
    sets of regulations are thus challenged in these proceedings:
    schedules 1 and 2 of the Tariff of Conveyancing and Notarial Fees
    contained in Annexure II to the Deeds Registries Regulations 1996,
    made in terms of section 10(1)(c) of the Deeds Registries Act, which
    were published in 1996 and substituted with amended schedules in
    2004 (the Deeds Registries’ Tariff);
    3
    and schedules 1 and 2 of similar regulations published in terms of
    section 40(1)(d) of the Sectional Titles Act, 1971 (the Sectional
    Titles’ Tariff).
    4
    In the course of this judgment, when referring to both the Deeds
    Registries’ Tariff and the Sectional Titles’ Tariff
    together, they shall be referred to as “the Tariffs”.
    The Deeds Registries’ Tariff was made by the first respondent,
    the Board, with the approval of the Minister, and the Sectional
    Titles Tariff was made by the Minister, after consultation with the
    Board.








  1. Regulation
    65(1) of the Deeds Registries’ Regulations provides that:








The
fees and charges as mentioned in subsection (1)(c) of section 10 of
the Act shall be those specified in the tariff of Conveyancing and
Notarial Fees set out in Annexure II to these regulations: Provided
that the Registrar may tax a bill for wasted costs, and the fees
allowed in connection with such wasted costs shall be in the
discretion of the Registrar.”






Conveyancers
are thus obliged to charge the tariffs fixed in the regulations, and
may not charge other rates.






  1. The
    Tariffs determined in both sets of regulations provide for a fixed
    sliding-scale tariff for conveyancing services, calculated on the
    basis of the value of the property concerned. The higher the value
    of the property, the higher is the tariff. So, for example, the
    Deeds Registries Tariff, as amended in 2004, provides at the bottom
    of the scale, for a property valued at less than N$20 000, that the
    prescribed tariff for attending to transfer is N$800. The same
    Tariff provides, at the top of the scale, for a property valued at
    N$500 000 or more, a tariff for transfer of N$6 000 for the first
    N$500 000, plus N$800 per N$100 000 or part thereof up to N$1 000
    000, and a further N$400 per N$100 000 up to N$5 000
    000, whereafter the tariff is N$200 per N$ 100 000.









High
Court



  1. The
    High Court dismissed the application. It found that the first
    appellant did not have standing to pursue that challenge as it is
    neither a legal practitioner nor able to establish that its ability
    to carry on business as a short-term insurer has been impaired by
    the regulations. It also found that Article 21(1)(j) of the
    Constitution does not protect the right of a professional person “to
    compete on price” and thus concluded that the Tariffs did not
    constitute an infringement of Article 21(1)(j). The Court also
    rejected the appellants’ argument that in promulgating the
    regulations, there had been an infringement of Article 18. Finally,
    the High Court rejected the argument that the Deeds Registries’
    Tariff was
    ultra vires
    its empowering provision, section 10(1)(c) of the Deeds Registries’
    Act. The appellants have now appealed to this Court.








Issues in the appeal



  1. The
    four issues which arise for decision are: Whether the first
    appellant has
    locus standi;
    whether the Tariffs constitute an infringement of Article 21(1)(j)
    of the Constitution, and if they do, whether the infringement is
    nevertheless justifiable in terms of Article 21(2); whether the
    Tariffs are unreasonable administrative action in breach of Article
    18; and whether the Deeds Registries’ Tariff is
    ultra
    vires
    the empowering
    provision, section 10 of the Deeds Registries Act, 1937.








Relevant constitutional provisions



  1. Article
    21(1) of the Namibian Constitution provides:








All
persons shall have the right to –




(j)
practise any profession, or carry on any occupation, trade or
business.”






Article
21(2) provides that:







The
fundamental freedoms referred to in Sub-Article (1) hereof shall be
exercised subject to the law of Namibia, in so far as such law
imposes reasonable restrictions on the exercise of the rights and
freedoms conferred by the said Sub-Article, which are necessary in a
democratic society and are required in the interests of the
sovereignty and integrity of Namibia, national security, public
order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence.”







  1. Article
    18 of the Constitution provides that:








Administrative
bodies and administrative officials shall act fairly and reasonably
and comply with the requirements imposed upon such bodies and
officials by common law and any relevant legislation, and persons
aggrieved by the exercise of such acts and decisions shall have the
right to seek redress before a competent Court or Tribunal.”







Standing



  1. The
    respondents took issue with the first appellant’s standing to
    pursue the challenge based on Article 21(1)(j) because, they argue,
    the first appellant is not a legal practitioner and accordingly has
    no direct and substantial interest in the challenge. Instead, the
    respondents argued, the first appellant only has a financial
    interest in the matter, which is not sufficient to provide it with
    standing.







  1. Both
    appellants assert that the first appellant has standing to launch
    the constitutional challenge. They assert that this standing arises
    from the requirement that the law requires everyone to use the
    services of a conveyancer for the purposes of deeds registration
    coupled with the agreement between the appellants in terms of which
    the second appellant agrees to provide conveyancing services to
    customers of the first appellant at an hourly rate rather than
    according to the prescribed Tariffs. The appellants argue that the
    first appellant has the right of freedom to contract with the second
    appellant and that the Tariffs infringe this right.







  1. The
    appellants also rely on Articles 25(2) and (3) of the Constitution
    which provide that:








(2) Aggrieved
persons who claim that a fundamental right or freedom guaranteed by
this Constitution has been infringed or threatened shall be entitled
to approach a competent Court to enforce or protect such a right or
freedom …







(3) Subject
to the provisions of this Constitution, the Court referred to in
sub-article (2) hereof shall have the power to make all such orders
as shall be necessary and appropriate to secure such applicants the
enjoyment of the rights and freedoms conferred on them under the
provisions of the Constitution should the Court come to the
conclusion that such rights or freedoms have been unlawfully denied
or violated…”






  1. Should
    the first appellant not have standing at common law, the appellants
    argue that “aggrieved persons” within the meaning of
    Article 25 of the Constitution is a broader class of potential
    litigants than the class created by the common-law concept of
    “direct and substantial interest”.







  1. The
    ordinary common-law principle is that a litigant must have a direct
    and substantial legal interest in the outcome of the proceedings.
    5
    A financial interest will not suffice. There are exceptions to this
    rule to prevent the injustice that might arise where people who have
    been wrongfully deprived of their liberty are unable to approach a
    court for relief.
    6
    This line of authority cannot assist the first appellant.







  1. The
    first appellant argues that its freedom to contract is impaired by
    the Tariffs and that therefore it has a legal interest in the
    outcome to the proceedings. For the purposes of this argument, the
    first appellant asserts, correctly, that the Court must proceed on
    the assumption that the Tariffs are void.
    7
    The respondents seek to rebut this argument on the ground that the
    first appellant is seeking “to raise itself up by its own
    bootstraps” by concluding an agreement with the second
    appellant that is unenforceable for the reason of the regulatory
    restriction on the second appellant. This argument is similar to
    the conclusion of the High Court that the first appellant has sought
    “to hitch-hike a ride on the back of the second appellant”
    and “to approach the Court through the backdoor”.







  1. I
    cannot agree. These proceedings will determine whether the contract
    entered into between the first and second appellants is void, so the
    outcome of the proceedings will determine the first appellant’s
    legal obligations
    vis à
    vis
    the second appellant.
    In my view, the first appellant thus does have a direct and
    substantial legal interest in the outcome of these proceedings. I
    have not overlooked the respondents’ argument that by entering
    into an agreement that will be unenforceable if these proceedings
    fail, the first appellant has created its own legal interest in the
    proceedings, but in my view there is nothing undesirable in such
    conduct. In a constitutional state, citizens are entitled to
    exercise their rights and they are entitled to approach courts,
    where there is uncertainty as to the law, to determine their rights.
    If the appellants are correct, and the Tariffs are in conflict with
    Article 21(1)(j) or Article 18 of the Constitution, then their
    contract will be valid and they will have successfully vindicated
    their rights. If they are incorrect, then they will have obtained
    clarity on their legal entitlements. The rules of standing should
    not ordinarily operate to prevent citizens from obtaining legal
    clarity as to their legal entitlements.







  1. I
    conclude, therefore, that the first appellant did have standing to
    launch these proceedings. This conclusion means that it is
    unnecessary to consider the argument raised by the appellants
    concerning the scope of the phrase “aggrieved persons”
    in Article 25 of the Constitution.






Article
21(1)(j)



  1. The
    second appellant argues that the Deeds Registries’ Tariff and
    the Sectional Titles’ Tariff constitute infringements of its
    right under Article 21(1)(j). It argues that Article 21(1)(j)
    includes the right to engage in free, economic activity and that the
    scope of the right includes within it, the right to compete on
    price. As the Tariffs prevent the second appellant from competing on
    price with other legal practitioners, the second appellant argues,
    its right under Article 21(1)(j) is infringed.







  1. The
    respondents argue that the right in Article 21(1)(j) protects the
    right to practise a profession, but does not seek to constrain the
    regulation of professions. In determining the proper ambit of
    Article 21(1)(j), the respondents point to Namibian history and in
    particular the racist practice of job reservation. This history is
    important to an understanding of Article 21(1)(j) as the High Court
    recognized in
    Hendricks and
    Others v Attorney-General and Others
    8
    in which Maritz J reasoned as follows:







The
inclusion of that right [article 21(1)(j)] in our Constitution must
be seen against a shameful history of job reservation for the
privileged few and the exclusion of a large number of disadvantaged
persons from access to certain provisions, occupations, trades and
business in South West Africa under South African rule. ….
Those who founded this country’s constitutional future were
determined to eradicate those practices by providing, amongst others,
for equal accessibility to and a free choice to pursue a career in
any profession, occupation, trade or business. They never
contemplated or intended to create a constitutional right to be or
become a professional paedophile, assassin, kidnapper or drug lord.”
9







  1. There
    can be no doubt, as the above reasoning indicates, that the history
    of job reservation is one of the important purposes of Article
    21(1)(j). Equally important, as the reasoning also indicates, is
    the recognition that when Article 21(1)(j) speaks of professions,
    trades, occupations and businesses, it does not protect the right of
    citizens to participate in activities that by their very nature
    involve the commission of common-law crimes such as murder, robbery,
    rape or assault, even if citizens refer to those activities as
    “professions, trades, occupations or businesses”.







  1. It
    does not follow, however, that the mere fact that a law prohibits
    certain forms of profession or trade means that such trade or
    profession falls outside the protection of Article 21(1)(j).
    10
    Such a conclusion would remove nearly all the protection provided by
    the constitutional provision. Such a conclusion was not intended by
    the reasoning in
    Hendricks.11
    If a law prohibits a trade, profession, occupation or business, a
    court must consider whether the prohibition constitutes a breach of
    the constitutional right. In determining the scope of the right,
    the court will give effect to the principle in
    Hendricks,
    that the right does not protect trades or business that involve the
    commission of common-law crimes or other similar conduct. This case
    is concerned with the profession of conveyancing, which is clearly a
    profession that ordinarily falls within the scope of the
    constitutional right.







  1. This
    case, however, does not involve a prohibition on conveyancing but a
    challenge to legal rules determining the fees that conveyancers may
    charge. The question that arises is whether, to the extent that the
    Tariffs regulate the profession by determining the fees that may be
    charged for conveyancing, they infringe the Article 21(1)(j) right.
    The fifth respondent argued that in determining whether the
    regulation of a profession was constitutionally permissible, the
    approach adopted by a full bench of the High Court in
    Namibia
    Insurance Association v Government of the Republic of Namibia
    12
    should be followed. In
    that case, the High Court found that only the right to practise is
    protected by Article 21(1)(j) and that any regulation of the
    practicing of a trade, profession or business need only be
    rationally connected to its purposes for it to be compliant with the
    Constitution.







  1. In
    my view, a slightly different approach should be followed. That
    approach must recognize, as this Court did, in
    Africa
    Personnel Services (Pty) Ltd v Government of the Republic of Namibia
    and Others
    that the right
    in Article 21(1)(j) does not “imply that persons may carry on
    their trades or businesses free from regulation”.
    13
    This approach must be correct for nearly all trades, professions
    and businesses are regulated by law. Article 21(1)(j) thus does not
    mean that regulation of a profession will, without more, constitute
    an infringement of the right to practise a profession that will
    require justification under Article 21(2), because professions are
    regulated and regulation will often constitute no barrier to
    practicing the profession at all.







  1. As
    the High Court observed in
    Namibia
    Insurance Association
    , any
    regulation of the right to practise must be rational but that is not
    the end of the enquiry. Even if the regulation is rational, if it
    is so invasive that it constitutes a material barrier to the right
    to practice the profession, the regulation will be an infringement
    of the right to practice that will have to be justified under
    Article 21(2). In determining whether a regulation that does
    constitute a material barrier to the right to practise is
    permissible under Article 21(2), a court will have to approach the
    question as set out in
    Africa
    Personnel Services (Pty) Ltd v Government of the Republic of
    Namibia
    .14







  1. The
    approach, thus has three steps: the first is to determine whether
    the challenged law constitutes a rational regulation of the right to
    practice; if it does, then the next question arises which is whether
    even though it is rational, it is nevertheless so invasive of the
    right to practice that it constitutes a material barrier to the
    practice of a profession, trade or business. If it does constitute a
    material barrier to the practice of a trade or profession,
    occupation or business, then the government will have to establish
    that it is nevertheless a form of regulation that falls within the
    ambit of Article 21(2).







  1. The
    respondents argue that the Tariffs constitute a rational regulation
    of the right to practise as a conveyancer. They argue that the
    purpose of providing fixed tariffs is to provide certainty as to the
    costs associated with property transfers and the registration of
    mortgage bonds. This, the government states, helps those engaged in
    the property market to determine what costs they will incur in
    advance. There is no doubt that the purpose identified by the
    respondents is a legitimate government purpose and that, by
    providing compulsory fees for conveyancing, the Tariffs meet this
    purpose. The Tariffs cannot therefore be said to be irrational. Do
    the Tariffs nevertheless constitute a material barrier to the
    practice of the profession?







  1. There
    was no evidence on the record that the Tariffs did constitute a
    barrier to the practice of the profession, such that legal
    practitioners withdrew from the practice of the profession because
    of the Tariffs. What does appear from the record, is that the second
    appellant would like to increase their share of conveyancing work by
    competing with other legal practitioners in relation to the price
    they charge for performing conveyancing work. The inability to
    compete on price, however, has not been shown to be a material
    barrier to the right to practise. In the circumstances, the
    appellants have not established that the Tariffs constitute an
    infringement of Article 21(1)(j).






Article
18




  1. The
    next question that arises is whether the Tariffs constitute
    “unreasonable” administrative conduct within the ambit
    of Article 18. The appellants argue that the Tariffs set fees that
    may be unreasonably high in certain circumstances; and also that the
    Tariffs are unreasonable because the fees that may be charged under
    the Tariffs may bear no correlation to the time spent on the work.







  1. What
    will constitute reasonable administrative conduct for the purposes
    of Article 18 will always be a contextual enquiry and will depend on
    the circumstances of each case. A court will need to consider a
    range of issues including the nature of the administrative conduct,
    the identity of the decision-maker, the range of factors relevant to
    the decision and the nature of any competing interests involved, as
    well as the impact of the relevant conduct on those affected. At the
    end of the day, the question will be whether in the light of a
    careful analysis of the context of the conduct, it is the conduct of
    a reasonable decision-maker. The concept of reasonableness has at
    its core, the idea that where many considerations are at play, there
    will be often be more than one course of conduct that is acceptable.
    It is not for judges to impose the course of conduct they would have
    chosen. It is for judges to decide whether the course of conduct
    selected by the decision-maker is one of the courses of conduct
    within the range of reasonable courses of conduct available.








  1. In
    determining whether the fixed sliding scale tariff for conveyancing
    fees is reasonable, I commence by observing that both Tariffs were
    set after consideration by the Board: the Deeds Registries’
    Tariff was made by the Board with the approval of the Minister and
    the Sectional Titles’ Tariff was made by the Minister after
    consultation with the Board.
    15
    The Board is a specialist body with expertise in the field of
    conveyancing. Its members include the Chief Registrar of Deeds,
    another registrar of deeds, as well as two conveyancers.
    16
    Quite clearly, there was a range of other options that the Board
    and the Minister could have chosen when they determined the Tariffs.
    They could have set the rates differently, or they could have, as
    the appellants argue they should have, imposed a guideline or an
    hourly rate. That there is a range of other policy choices, however,
    does not mean that the route adopted is unreasonable.







  1. The
    question remains whether the sliding scale Tariffs as adopted are
    unreasonable. In supporting the reasonableness of the Tariffs, the
    respondents tendered evidence of two members of the Board who point
    to the fact that the sliding scale means that the lower the value of
    the property, the lower the cost of conveyancing. The respondents
    admit that expensive properties will attract high conveyancing fees
    but argue that this cannot be said to be either unfair or
    unreasonable, because purchasers of valuable properties are almost
    invariably those most able to cover conveyancing charges.







  1. The
    respondents admit that the effect of compulsory tariffs is to
    prevent conveyancers competing on price. This effect is inevitable
    if certainty as to conveyancing charges is to be achieved. Although
    there may be circumstances where preventing competition on price
    would be unreasonable, there are considerations relevant to this
    case that suggest the converse. These include the following.
    First, the effect of a fixed tariff has not been shown to be a
    material barrier to the practise of the profession of conveyancer.
    Secondly, the service performed by conveyancers is a service that
    must be used by all those who wish to own property, as it is only
    conveyancers who are permitted to arrange for the transfer of
    ownership of property and the registration of other rights against
    property in the deeds office. Accordingly, it is appropriate that
    the service be regulated in the public interest. Thirdly, although
    there may be other advantages were competition on price to be
    permitted, a fixed set of tariffs also has advantages. It permits
    people who are calculating whether they can afford to buy a property
    to know at the outset what the conveyancing charges will be. The
    sliding scale fixed Tariffs also ensure that those who buy
    properties of the lowest value have least to pay in conveyancing
    fees, whereas those who buy more expensive properties, will pay
    more. Fourthly, the Board that sets the tariff in the case of the
    Deeds Registries’ Tariff and which is consulted by the
    Minister in respect of the Sectional Titles’ Tariff, is a
    committee of experts in conveyancing, well placed to make the
    decision as to the approach to be followed in setting the Tariffs.







  1. In
    conclusion, then, while it may be that it would be reasonable to
    permit competition on price, it cannot be said that to prohibit it
    is, in the circumstances of this case, an unreasonable course.
    Accordingly, the appellants have not established that the Tariffs
    constitute an infringement of Article 18 of the Constitution.






Is
the Deeds Registries’ Tariff
ultra
vires
section 10(1)(c)?



  1. The
    final question to be considered is whether the Deeds Registries
    Tariff is
    ultra vires
    the empowering provision, section 10(1)(c) of the Deeds Registries
    Act. Section 10 provides that:







(1) The
board established under section nine may make regulations prescribing



.



(c) the
fees and charges of conveyancers and notaries public in connection
with the preparation, passing and registration of deeds or other
documents registered or filed or intended for registration of deeds
in a deeds registry and the fees and charges of any other legal
practitioners in connection with the preliminary work required for
the purpose of any such deed or other document and the fees and
charges in connection with the taxation of any such fees or charges.”






  1. The
    appellants argue that this section does not contemplate or permit
    compulsory
    ad valorem
    fees, as such fees are not taxable, because they are fixed and do
    not give rise to disputes such as must be resolved by way of
    taxation.
    17
    They argue that section 10(1)(c) permits the Board to prescribe, by
    way of regulation, three things: (a) the fees and charges of
    conveyancers and notaries public in connection with the preparation,
    passing and registration of deeds; (b) the fees and charges of any
    other legal practitioners in connection with the preliminary work
    required; and (c) the fees and charges “in connection with the
    taxation of any such fees and charges”. The appellants state
    that as the legislation indicates that the Board should provide for
    fees relevant to taxation, section 10(1)(c) does not contemplate an
    ad valorem
    fixed tariff.







  1. The
    respondents reply by saying that there is no bar to the taxation of
    ad valorem
    fixed tariffs. Taxation, they assert, is a form of process aimed at
    ensuring the correct amount has been charged for a service and it
    does not require the concept of a “reasonable fee” but
    can be necessary even in the case of fixed
    ad
    valorem
    fees. A dispute
    may arise, for example, as to the value of the relevant property,
    which may be determined by taxation. The respondents also argue that
    to the extent that section 10(1)(c) empowers the Board to
    “prescribe” fees, it empowers the Board to prescribe
    fixed tariffs and not only to set guidelines, or minimum or maximum
    fees.







  1. The
    answer to the appellants’ challenge lies in the proper
    interpretation of section 10(1)(c). It is clear that the section
    empowers, but does not compel, the Board to make regulations
    governing the fees charged in connection with conveyancing (“The
    Board … may make regulations prescribing…”). If
    the Board does make regulations, the subject matter of the
    regulations are the fees and charges of conveyancers and notaries
    public in connection with conveyancing; the fees and charges of
    other legal practitioners for preliminary work; and the fees and
    charges in connection with the taxation of any such fees and
    charges. The ordinary meaning of “may” implies that the
    Board is not required to prescribe the relevant fees or charges. It
    has a discretion (“may prescribe”) whether to do so.
    The words “may prescribe” relate to each of the three
    types of “fees” referred to in the subsection. So the
    Board “may prescribe” the fees and charges of
    conveyancers and notaries public in connection with the preparation,
    passing and registration of deeds; and it “may prescribe”
    the fees and charges of any other legal practitioners in connection
    with the preliminary work required; and it “may prescribe”
    the fees and charges “in connection with the taxation of any
    such fees and charges”. The section, thus interpreted,
    empowers the Board, in the exercise of its discretion, to determine
    the first two categories of fees but not the third.







  1. Moreover,
    to interpret section 10(1)(c), as the appellants argue, to mean that
    the Board may not set a fixed
    ad
    valorem
    rate, as it has
    chosen to do, would also be contrary to the ordinary meaning of the
    word “prescribe”. To “prescribe”, according
    to the Shorter Oxford English Dictionary means, amongst other
    things, “to write or lay down as a rule or direction to be
    followed”. This meaning of “prescribe” would
    include setting a fixed tariff.







  1. For
    these reasons, the appellants’ argument that the Deeds
    Registries’ Tariff is
    ultra
    vires
    section 10(1)(c) of
    the Deeds Registries Act can therefore not be accepted.






Costs



  1. The
    appellants have failed in their appeal. In the circumstances, it
    is appropriate to order them to pay the costs of the first to fourth
    and sixth respondents, including the costs of one instructed and one
    instructing counsel; and the costs of the fifth respondent on the
    basis of two instructed and one instructing counsel.








Order



  1. The
    following order is made:








1. The appeal is dismissed.



2. The appellants are ordered to pay
the costs of the appeal as follows: the costs of the first to fourth
and sixth respondents, such costs to include the costs of one
instructed and one instructing counsel; and the costs of the fifth
respondent, such costs to include the costs of two instructed and one
instructing counsel.









_______________


O’REGAN
AJA















I
agree.











_______________


SHIVUTE
CJ









I
agree.








________________


LANGA
AJA







COUNSEL ON BEHALF OF THE
APPELLANTS
: Mr. S.F. Burger
SC


Assisted
by
: Mr. R. Heathcote



INSTRUCTED BY: Van
der Merwe-Greeff Inc










COUNSEL ON BEHALF OF 1ST,
2
ND,
3
RD,
4
th,


6TH
RESPONDENTS:
Mr. N.N.
Marcus


INSTRUCTED
BY:
Government
Attorney









COUNSEL
ON BEHALF OF 5
TH
RESPONDENT: Mr.
J.J. Gauntlett SC



ASSISTED BY: Mr.
R.L. Maasdorp


INSTRUCTED
BY:
LorentzAngula Inc.










1
Section
10(1) of the Deeds Registries Act provides that: “The board
established under section 9 may make regulations prescribing –


(c)
the fees and charges of conveyancers and notaries public in
connection with the preparation, passing and registration of deeds
or other documents registered or filed or intended for registration
in a deeds registry and the fees and charges of any other legal
practitioners in connection with the preliminary work required for
the purpose of any such deed or other document and the fees and
charges in connection with the taxation of any such fees or
charges.”




2
The
Sectional Titles Act, 66 of 1971, is to be repealed in full by the
Sectional Titles Act, 2009, when that Act comes into force.




3
Published
in
Government
Gazette

1343 on 1 July 1996, Government Notice 180 of 1996, as substituted
by Regulation 20, published in Government Notice 26 of 2004,
published in
Government
Gazette

3155 of 17 February 2004.




4
Published
in
Government
Gazette

3824 of 13 April 2007.




5
See,
for example,
Africa
Personnel Services (Pty) Ltd v Government of the Republic of Namibia
2009
(2) NR 596 (SC); 2011 (1) BLLR 15 at para [30];
Clear
Channel Independent Advertising (Pty) Ltd v TransNamib Holdings Ltd
2006
(1) NR121 (HC) at 138 G - I.




6
See
Woods
and Others v Ondangwa Tribal Authority and Another
1975
(2) SA 294 (A) at 311 – 312 which concerned the locus standi
of a person to apply for an interdict
de
libero homine exhibendo
.
The court held “… if a person who has neither kith nor
kin in this world is illegally deprived of his liberty, and a person
who comes to hear of this were to apply for an interdict
de
libero homine exhibendo
,
he could hardly fail to be consider the prisoner’s friend..”.
(at 311 A)




7
See
Kerry
McNamara Architects Inc and Others v Minister of Works, Transport
and Communications
2000
NR 1 (HC) at 3 – 4 relying on
Jacobs
en ‘n Ander v Waks en Andere
1992
(1) SA 521 at 535 J – 536 A.




8
2002
NR 353 (HC).




9
At
357J – 358B.




10
See,
in this regard,
Africa
Personnel Services (Pty) Ltd v Government of the Republic of Namibia
and Others
,
above n 5
,
at para [51] and paras [54] – [56].




11
Above
n 8.




12
2001
NR 1 (HC).




13
Cited
above n 10, at para [97].




14
Cited
above n 5 at paras [65] – [68].




15
See
footnotes 3 and 4 above.




16
See
section 9(2) of the Deeds Registries Act.




17
The
appellants rely on
Benson
and Another v Waters and Others
1981
(4) SA 42 (C) at 49; and
Afshani
and Another v Vaatz
2007
(2) NR 381 (SC) at 390B.