National Treasury and Others v Opposition to Urban Tolling Alliance and Others

JurisdictionSouth Africa
Citation2012 (6) SA 223 (CC)

National Treasury and Others v Opposition to Urban Tolling Alliance and Others
2012 (6) SA 223 (CC)

2012 (6) SA p223


Citation

2012 (6) SA 223 (CC)

Case No

CCT 38/12
[2012] ZACC 18

Court

Constitutional Court

Judge

Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Skweyiya J and Van Der Westhuizen J

Heard

August 15, 2012

Judgment

September 20, 2012

Counsel

JJ Gauntlett SC (with K Pillay and F Pelser) for the first applicant.
DN Unterhalter SC (with B Leech SC and K Hofmeyr) for the second applicant.
AE Franklin SC (with APH Cockrell SC, A D'Oliveira and A Friedman) for the first to fourth respondents.
MSM Brassey SC (with K Hopkins) for the Road Freight Association as applicant for leave to intervene.

Flynote : Sleutelwoorde B

Constitutional law — Separation of powers — Between judiciary and executive — Application for interim interdict prohibiting organ of state from C exercising statutory power pending review — Courts to be wary of restraining exercise of executive statutory power — Must carefully assess how and to what extent interdict will disrupt executive or legislative functions, in particular executive decisions regarding allocation of public resources — High court interdict restraining implementation of e-tolling system criticised for failing to make such assessment. D

Road — Toll road — Implementation of e-tolling system to fund highway up- grade — Such amounting to government competence involving allocation of public resources — High court order temporarily interdicting implementation of system intruding on executive terrain — Order set aside on appeal.

Constitutional practice — Appeal — Parties — Amicus curiae — Application for E admission as in Constitutional Court — Political party — Party seeking to advance political agenda — Inappropriate for it to be admitted as amicus — Should rather seek admission as intervening party.

Headnote : Kopnota

It is inappropriate for a political party seeking to advance a purely political F agenda or sectarian interest to seek admission to the Constitutional Court as an amicus rather than as an intervening party. (Paragraphs [14] – [15] at 228D – F.)

On 28 April 2012 the North Gauteng High Court granted an interdict restraining the SANRAL (the government agency in charge of national roads) from proceeding with its controversial 'e-tolling' system, an electronic G tagging-and-tolling system that was to be implemented in Gauteng province to finance SANRAL's upgrading of the province's freeways. In an application for leave to appeal to the Constitutional Court —

Held: The high court interdict had the effect, for as long as it was in place, of preventing the national executive from fulfilling its statutory and budgetary responsibilities. Before making an order of such nature a court was obliged H to consider — in addition to the usual common-law requirements for the granting of an interim interdict — the doctrine of separation of powers, which barred the judiciary from meddling in executive or legislative matters unless the intrusion was constitutionally mandated. The court had to take into account the interests of the government and the extent to which the requested interdict would intrude on executive terrain, particularly if it I interfered with the allocation of public resources, which was a policy issue at the core of the executive domain. Such interference was unwarranted, except where there was proof of unlawfulness, fraud or corruption. In the present case the high court had, by preventing SANRAL from performing its statutory duties, meddled in fiscal affairs, and done so without even touching on the issue of separation of powers. The court had also ignored J

2012 (6) SA p224

A the substantial financial harm the interdict would cause the government. The high court's deafening silence on the issue of separation of powers, in conjunction with the balance of convenience, justified interference with the high court order. Interdict accordingly set aside on appeal. (Paragraphs [27], [44] – [47] and [65] – [73] at 232B – E, 236E – 237D and 241B – 242I.)

Cases Considered

Annotations: B

Case law

Southern Africa

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): referred C to

Cronshaw and Another v Fidelity Guards Holdings (Pty) Ltd 1996 (3) SA 686 (A) ([1996] 2 All SA 435): referred to

Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA 417 (SCA): distinguished

Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) (2006 (12) BCLR 1399; [2006] ZACC 11): D referred to

Ex parte Institute for Security Studies: In re S v Basson 2006 (6) SA 195 (CC) (2006 (2) SACR 350; [2005] ZACC 4): applied

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) (1997 (7) BCLR 851; [1997] ZACC 6): dictum in para [9] applied

Glenister v President of the Republic of South Africa and Others 2009 (1) SA 287 (CC) (2009 (2) BCLR 136; [2008] ZACC 19): referred to E

Gool v Minister of Justice and Another 1955 (2) SA 682 (C): applied

Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC) (2007 (3) BCLR 249; [2006] ZACC 20): dictum in para [13] applied

International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC) (2010 (5) BCLR 457; [2010] ZACC 6): dictum in paras [47] – [55] applied F

Machele and Others v Mailula and Others 2010 (2) SA 257 (CC) (2009 (8) BCLR 767; [2009] ZACC 7): referred to

Minister of Health and Others v Treatment Action Campaign and Others (No 1) 2002 (5) SA 703 (CC) ([2002] ZACC 16): G referred to

Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another (Mukhwevho Intervening) 2001 (3) SA 1151 (CC) (2001 (7) BCLR 652; [2001] ZACC 19): applied

Molteno Brothers and Others v South African Railways and Others 1936 AD 321: H referred to

Opposition to Urban Tolling Alliance and Others v South African National Roads Agency Ltd and Others [2012] ZAGPPHC 63: reversed on appeal

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1): dictum in para [20] applied

President of the Republic of South Africa and Others v United Democratic Movement (African Christian Democratic Party and Others Intervening; Institute for Democracy in South Africa and Another as Amici Curiae) 2003 (1) SA 472 (CC) (2002 (11) BCLR 1164; [2002] ZACC 34): referred to I

Setlogelo v Setlogelo 1914 AD 221: applied

Webster v Mitchell 1948 (1) SA 1186 (W): applied. J

2012 (6) SA p225

Canada A

RJR-MacDonald Inc v Canada (Attorney General) [1994] 1 SCR 311: compared.

England

Smith and Others v Inner London Education Authority [1978] 1 All ER 411 (CA): compared. B

Case Information

Application for leave to appeal and appeal against an interim order granted in the North Gauteng High Court, Pretoria (Prinsloo J).

JJ Gauntlett SC (with K Pillay and F Pelser) for the first applicant. C

DN Unterhalter SC (with B Leech SC and K Hofmeyr) for the second applicant.

AE Franklin SC (with APH Cockrell SC, A D'Oliveira and A Friedman) for the first to fourth respondents.

MSM Brassey SC (with K Hopkins) for the Road Freight Association as applicant for leave to intervene. D

Cur adv vult.

Postea (September 20). E

Judgment

Moseneke DCJ (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Skweyiya J and Van der Westhuizen J concurring):

Introduction

[1] In 2007 the cabinet approved an extensive upgrade of roads in the F economic hub of the Gauteng province as part of a highway construction project known as the Gauteng Freeway Improvement Project (GFIP). The upgrades were carried out by the South African National Roads Agency Ltd (SANRAL or second applicant), an organ of state, established under the South African National Roads Agency Ltd and National Roads Act [1] (SANRAL Act). G

[2] This early, I would like to delineate the powers and the responsibilities of SANRAL. Its main functions and responsibilities include all strategic planning, design, construction, management, control, H maintenance and rehabilitation of national roads. It also bears the responsibility of arranging financing for those activities. [2] For present purposes it is important to record that SANRAL is obliged to exercise its powers and execute its responsibilities 'within the framework of government policy'. [3] The SANRAL Act prescribes the funding options that are available to SANRAL. [4] The funding options relevant to the present dispute include I

2012 (6) SA p226

Moseneke DCJ (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Skweyiya J and Van der Westhuizen J concurring)

A loans granted to or raised by SANRAL, levies charged on the sale of fuel, toll and moneys appropriated by parliament. [5]

[3] The GFIP entailed extensive civil-engineering work, the widening and enhancement of roads, the building of new on- and off-ramps and B the erection of gantries equipped with an electronic open-road tolling system (e-tolling). SANRAL engaged contractors, service providers and suppliers to accomplish the project. It also incurred R21 billion debt to finance the vast capital expenditure of the first phase of the project, of which the government guaranteed a total of R19 billion. In the event of default, SANRAL will be liable for the full and punctual repayment of the C loans to third-party funders.

[4] The first phase of the project has been completed. The modernised highways are used daily by motorists in Gauteng. The roads have been fitted with electronic infrastructure for tolling their use. Subject to proclaiming toll fees, the electronic tolling...

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