Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jappie AJ, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ
• Judgment Date: 12 May 2015
• Citation: 2015 (5) SA 370 (CC)
• Docket Number: CCT 163/14 [2015] ZACC 12
• Hearing Date: 17 February 2015
• Counsel: W Trengove SC (with I Goodman) for the applicant. M Chaskalson SC for the respondents. K Hopkins for the amicus curiae.
• Court: Constitutional Court

Jappie AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ concurring): G

Introduction

H [1] On 31 March 2011 the Minister of Transport promulgated amendment regulations [1] in terms of s 51 of the Cross-Border Road Transport Act. [2] The effect of these regulations increased the permit fees payable to the Cross-Border Road Transport Agency (Agency) by cross-border road-transport operators by a substantial amount.

I [2] Central African Road Services (Pty) Ltd (Road Services) and Deernam (Pty) Ltd (Deernam) brought an application in the North

Jappie AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ concurring)

Gauteng High Court, Pretoria (High Court) [*1] for the review and A setting-aside of the regulations, contending that the regulations were inconsistent with the Constitution and must therefore be invalidated. The application was opposed by the Minister of Transport (Minister) and the Agency.

[3] The application came before Makgoka J who, on 15 February 2013, B found for Road Services and Deernam. He found the regulations invalid on various grounds. These were:

•

They were only published in English, contrary to the constitutional requirement that laws must be promulgated in two official languages;

•

the right to procedural fairness in the publication and promulgation of the regulations had been violated; C

•

proper consultation on the tariff increases had not taken place; and

•

the Agency's board had failed to apply its mind to the draft regulations.

[4] He accordingly declared the regulations invalid but suspended the D order of invalidity for a period of six months to enable the Minister and the Agency to republish the regulations and thereafter to receive and consider public comment. The order of Makgoka J reads as follows:

'1.

It is declared that the [Regulations] were published in a manner inconsistent with s 6(3) of the [Constitution], and were invalid for the period between 1 April 2011 and 28 October 2011. E

2.

The invalidity period referred to in (1) above, shall have no effect on the permit fees and/or penalties paid during that period in terms of the Regulations.

3.

It is declared that the first respondent (the Minister) and the second respondent (the agency) have failed to comply with their constitutional obligation to ensure procedural fairness in the publication and promulgation of the Regulations. F

4.

It is declared that the second respondent (the agency) has failed in its constitutional duty to comply with its duty to facilitate proper public comment before publishing the Regulations.

5.

It is declared that the board of the agency has failed in its statutory duty to properly consider the draft regulations, for the sake of consulting with the Minister. G

6.

The Regulations are, as a consequence, promulgated in a manner that is inconsistent with the provisions of Promotion of Administrative Justice Act 3 of 2000 and s 33 of the Constitution, and are therefore invalid.

7.

The order declaring invalid the Regulations is suspended for a H period of six (6) months to enable the agency and the Minister to republish the Regulations and thereafter to receive and consider public comments.

8.

The applicants' constitutional challenge relating to taxation or money bill is dismissed.

9.

The respondents are ordered to pay 80% of the applicants' costs I including the wasted costs occasioned on 5 March 2012 of which the respondents are liable to pay 100%.'

Jappie AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ concurring)

A [5] The Minister failed to promulgate valid regulations within the period of suspension provided for in para 7 of the order and failed to make an application to extend the six-month period. It is common cause that the order of invalidity came into operation at midnight on 14 August 2013, after the six-month period lapsed, but the parties dispute whether the order operates retrospectively as of the date the regulations were B promulgated, 31 March 2011, or prospectively from 15 August 2013.

[6] On 1 October 2013, about a month after the suspension period lapsed, Road Services brought an urgent application in the High Court. In part A of the notice of motion, Road Services sought an order C compelling the Agency to issue to it transport permits in terms of the regulations as they stood prior to the introduction of the invalidated 2011 regulations.

[7] In part B of the notice of motion, Road Services sought a declaratory order that the six-month period contemplated in para 7 of the order of D 15 February 2013 lapsed at midnight on 14 August 2013. It also sought an order that the invalidity referred to in para 6 of the order came into operation with full retrospective effect at midnight on 14 August 2013. Further that, until the Minister promulgates constitutionally valid regulations amending the permit fees, the fees payable by cross-border E road transport operators are those set out in the existing regulations.

[8] The application came before Heaton-Nicholls J who, on 1 November 2013 granted the following order: [†]

'1.

The period of 6 months contemplated in paragraph 7 of the order handed down by this court on the 15 February 2013 . . . lapsed at F midnight on the 14 August 2013.

2.

The order of invalidity in paragraph 6 of the order, handed down by this court on the 15 February 2013 . . . accordingly came into operation with full retrospective effect at midnight on the 14 August 2013.

3.

Until such time as the 2nd respondent may promulgate new G constitutionally valid regulations amending the permit fees set out in the Cross Border Road Transportation Regulations 1998, published under Government Notice No R464 of 3 April 1998, as amended by the Government Notice Nos R998 of 13 August 1991, R682 of 7 July 2000 and R677 of 2 June 2003 (the existing regulations), the permit fees payable by Cross Border Road H Transport Operations are those set out in the existing regulations.

4.

That the respondents pay the costs of this application jointly and severally except for the applicants' cost of drafting the notice of motion and the founding affidavit which are disallowed.'

[9] The Agency applied for, but on 18 June 2014 was refused, leave to I appeal to the Supreme Court of Appeal. On 16 July 2014 the Agency then petitioned the Supreme Court of Appeal for leave to appeal, which petition was dismissed on 8 September 2014.

Jappie AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ concurring)

[10] The Agency now applies to this court for the following relief: A

'1.

Granting the applicant leave to appeal against the judgment and order of the North Gauteng Division of the High Court delivered on 1 November 2013.

2.

Upholding the appeal with costs, including the costs of two counsel. B

3.

Setting aside the order of the High Court and replacing it with an order in the following terms:

''(1) It is declared that the period of 6 months contemplated in para 7 of the order handed down by this Court on 15 February 2013 . . . lapsed at midnight on 14 August 2013. C

(2) It is further declared that the order of invalidity in paragraph 6 of the order handed down by this Court on 15 February 2013 . . . accordingly took effect from 15 August 2013.

(3) It is further declared that from 15 August 2013 until D such time as the second respondent promulgates new regulations amending the permit fees set out in the Cross-Border Road Transport Regulations, 1998 published in Government Notice No R464 of 3 April 1998, as amended by Government Notice Nos R464 of August 1999, R682 of July 2000 and R677 of 2 June 2003 (the existing regulations), E the permit fees payable by cross border road transport operators are those set out in the existing regulations.

(4) Each party is ordered to pay its own costs.

4.

Further or alternative relief.' F

Issues

[11] The question to be considered is, what principles govern the operation of orders of constitutional invalidity that are suspended, where the suspension period has passed without the enactment of remedial G legislation? And further, whether a court has the power to vary a final order made, and if so whether that power should be exercised.

Jurisdiction

[12] This application raises important questions on the principles that H govern declarations of constitutional invalidity, as well as a court's power to vary an order where that order, properly construed, is silent on the question of retrospectivity. These questions relate directly to the powers of the court. [3] This is a constitutional matter and the application thus falls within the jurisdiction of this court. It is therefore in the interests of justice to grant leave to appeal. I

Jappie AJ (Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Khampepe J, Madlanga J, Molemela AJ, Nkabinde J, Theron AJ and Tshiqi AJ concurring)

The doctrine of objective constitutional invalidity A

[13] Whether a law is invalid is determined by an objective enquiry into its conformity with the Constitution. [4] The doctrine of objective constitutional invalidity was laid out in Ferreira v Levin where this court held that finding a law to be in conflict with the Constitution 'does not B invalidate the law; it merely declares it to be invalid'. [5] A law that has been found to be inconsistent with the Constitution ceases to have any legal consequences. [6]

[14] Due to the impact that the doctrine of objective constitutional invalidity could have, the interim Constitution...