The government has welcomed a Constitutional Court ruling that gives it the green light to toll motorists using Gauteng’s highways.
“The ruling reaffirms government’s conviction that the North [Gauteng] High Court had erred in its judgement which interferes with policy making, a responsibility of the executive,” a statement following Thursday’s ruling said.
The court ruled that the interim order granted by the court on April 28, which put a hold on the project, be set aside because that court had not considered the separation of powers between high court and executive.
“Government respects the right of any member of the public to approach the courts to review its decisions and operations within the country’s legal framework,” the statement from Transport Department Director General George Mahlalela said.
“Government remains convinced about the appropriateness of the Gauteng Freeway Improvement Project [GFIP], with the user-pay principle as part of our country’s investment in road infrastructure and our collective drive to grow the economy,” he said.
The development of a country’s road infrastructure played a critical role in building its economy and sustaining its growth by facilitating the movement of goods and services across the country.
Government would study the judgment and make an announcement on the way forward soon.
But the Congress of SA Trade Unions (Cosatu) was adamant that there would be no e-tolling.
“We are going to resist it with every power we have,” Cosatu general secretary Zwelinzima Vavi told reporters on the sidelines of Cosatu’s 11th national congress in Midrand.
“In our view, it would be a huge mistake by government if it was to steam ahead on the basis of the Constitutional Court judgment and implement what we all know is an extremely unpopular policy decision,” Vavi said.
“There will be no e-tolling,” he said.
A programme of action would be announced at Cosatu’s conference later.
The High Court in Pretoria granted the Opposition to Urban Tolling Alliance (Outa) an interdict on April 28, ruling that a full review needed to be carried out before electronic tolling known as “e-tolls” of Gauteng’s highways could be put into effect.
The interdict prevented the SA National Roads Agency Limited (Sanral) from levying or collecting e-tolls pending the outcome of the review.
Sanral and National Treasury appealed the court order, and said delays prevented the payment of the R21 billion incurred building gantries.
Outa leader Wayne Duvenage said it wouldn’t be possible for the government to start tolling “tomorrow” because there were still outstanding issues to be dealt with.
“They can’t start e-tolling tomorrow,” he said.
The issues include tariff exemptions and other work to get the project up and running again.
The actual review hearing will take place in November.
Outa will hold a media briefing later on Thursday.
The Constitutional Court declined the Democratic Alliance and Road Freight Association‘s applications as friends of the court.
The DA’s Gauteng caucus leader Jack Bloom said Sanral would find it difficult to implement the e-tolls in the face of widespread public opposition.
Legislation to implement the tolls had also still not been passed in Parliament.
“The DA will oppose this so that the public are treated fairly in this matter,” he said in a statement.
Reading the judgment, Deputy Chief Justice Dikgang Moseneke said the separation of powers was a vital tenet of South Africa’s constitutional democracy.
“Courts must refrain from entering the exclusive terrain of the executive and legislative branches of government, unless the intrusion is mandated by the Constitution,” he explained.
Courts should only grant an interim interdict preventing the national executive from exercising its statutory power in exceptional circumstances, and when a strong case is made out for the relief sought.
Courts must ask whether it is constitutionally appropriate to grant an interdict whose effect would be to encroach upon the exclusive domain of another sphere of government.
The duty of determining how public resources are to be drawn upon and re-ordered lies “in the heartland” of executive government function and domain.
“What is more, absent any proof of unlawfulness or fraud or corruption, the power and the prerogative to formulate and implement policy on how to finance public projects reside in the exclusive domain of the National Executive, subject to budgetary appropriations by Parliament,” he continued.
Another consideration is that the collection and ordering of public resources almost inevitably calls for policy-laden and polycentric decision-making.
“Courts are not always well suited to make decisions of that order,” Moseneke said.
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