Court to hear e-toll case

[LazyLion]

The High Court in Cape Town will hear argument on Tuesday that legislation governing e-tolling should be declared unconstitutional.

Democratic Alliance spokesman Mmusi Maimane said on Sunday that the party approached the court because the Transport Laws and Related Matters Amendment Bill (the e-tolling bill) was incorrectly passed by Parliament and signed into law by President Jacob Zuma.

He said if the case is successful, the law would need to be sent back to Parliament to deliberate on for a second time.

The DA would argue that the law was incorrectly passed by the National Assembly as it was tagged as a Section 75 bill (debated in Parliament only) and not a Section 76 Bill (debated in Parliament and provinces).

"The people of Gauteng were therefore denied a voice in the passing of the e-tolling bill due to it not appearing before the provincial legislature," Maimane said.

He said should the DA win the case in the high court, the matter would automatically be referred to the Constitutional Court where the law may be declared unconstitutional.


Source : Sapa /aa/mjs
Date : 04 Mar 2014 02:01

 

[LazyLion]

DA begins e-toll court challenge

DA leaders have headed to court in Cape Town to start contesting the constitutionality of the e-toll Bill that was passed last year.

In a case certain to be watched closely by many South Africans, the Democratic Alliance (DA) began its court challenge on Tuesday of the constitutionality of the e-tolling Bill passed by Parliament.

The DA Gauteng premier candidate Mmusi Maimane and DA Western Cape leader Ivan Meyer arrived to represent the party in the high court in Cape Town.

"We are feeling very good about this case," said Maimane, shortly before heading into court. "We have had awful administrative problems in Gauteng with e-tolling. It has been appalling. Among the people getting bills for e-tolling are children."

Maimane said he came to court to represent Gauteng residents, who have expressed an overwhelming opposition to e-tolling.

The DA will claim in court that the Transport Laws and Related Matters Amendment Bill was incorrectly passed by Parliament and signed into law by President Jacob Zuma.

If the DA wins its case, the Bill could be sent back to Parliament and this could affect residents in Gauteng, where e-tolling has already been implemented, as well as residents in the Western Cape, where Sanral, or the South African National Roads Agency Limited, proposes to implement a N1/N2 Winelands toll highway project.

In the event the DA does win the case, the legal matter will be referred to the Constitutional Court.

Zuma as President of South Africa is cited as one of the five respondents in the case.

Impact on socioeconomic conditions
In its founding affidavit, the chairperson of the federal executive of the DA, MP James Selfe, said the party's parliamentary representatives believe that the DA has a constitutional duty to bring this challenge to what it contends is the unconstitutional and therefore unlawful passing of an Act of Parliament.

"In bringing this challenge, the DA is therefore not only acting in its own interests – as a political party with representation in Parliament – but also in the interests of its members and the public."

Selfe wrote that the application concerns the constitutional validity of the Transport Laws and Related Matters Amendment Act 3 of 2013, referred to as the amendment Act, which the DA contends was not enacted in accordance with the correct procedure provided in the Constitution.

"The amendment Act enables Sanral to introduce electronic toll collection systems on declared toll roads throughout the country," Selfe wrote. "In particular, the DA contends that the amendment Act ought to have been passed by Parliament in accordance with the procedures set out in section 76 of the Constitution, and not section 75. The reason for this contention is that the provisions of the amendment Act, in substantial measure, fall within concurrent provincial legislative competences."

As the amendment Act recognises that establishing a toll road will have an impact on the socioeconomic conditions of the surrounding areas, said Selfe.

"It will, most obviously, affect which roads people choose to use. That applies not only to ordinary commuters but to commercial vehicles transporting goods," he wrote in his affidavit. "The possibility of toll roads will manifestly affect the manner in which a province legislates on public transport and road traffic regulation."

Additional pollution
Selfe said that provincial regional development legislation will naturally be affected by the possibility that a national agency could declare a road in the province a toll road.

"Establishing a toll road could affect trade because it will determine whether particular areas of the province can cheaply and efficiently transport goods within and out the province," he wrote. "It will affect the environment by pushing traffic onto alternative roads, creating additional air and noise pollution in different areas."

The consequences of toll roads in general are also present with e-tolls, said Selfe. "The e-toll system is integral to the effective functioning of certain toll roads, in particular at this stage, those forming part of the Gauteng Freeway Improvement Project, although it is anticipated that similar projects will be implemented in other provinces as well."

The case continues in the high court on Tuesday and Wednesday.

http://mg.co.za/article/2014-03-04-da-begins-e-toll-court-challenge

 

[LazyLion]

CAPE COURT HEARS E-TOLL CASE

Provinces should be able to debate the e-tolling bill because it affects them, the Western Cape High Court heard on Tuesday.

Willie Duminy, for the Democratic Alliance, argued that the Transport Laws and Related Matters Amendment Bill passed the test of being tagged as a matter for provincial debate in Parliament.

"It cannot really be denied by the present respondents that this entire system of tolling and raising road user charges affects profoundly the interest, concerns and capacities of provinces," he said.

President Jacob Zuma signed the amendment bill into law in September, in effect opening the way for e-tolling in Gauteng.

The bill amended the SA National Roads Agency Limited (Sanral) and National Roads Act to allow the collection of electronically recorded tolls and the implementation of the electronic toll collection system.

"The proposition of the applicants... is that these measures make it possible to establish this open road e-tolling system, and that in itself extends the scope, in practical purposes, of where tolling can be implemented," Duminy said.

The bill was tagged as a section 75 bill -- to be debated only in the National Assembly -- rather than a section 76 bill, which is debated in both the National Assembly and the National Council of Provinces (NCOP).

The DA's application is to have the bill declared unconstitutional and invalid because it has not been passed according to proper procedure, which would be with input from the provinces.

The respondents in the application are Zuma, the Speaker of the National Assembly Max Sisulu, NCOP chairman Johannes Mahlangu, Transport Minister Dipuo Peters, Sanral, and the National Treasury.

Duminy argued that there were different voting methods for section 75 and section 76 bills, and that a bill passed in the first instance may not pass in the second instance.

The political party's legal argument is based on the Constitutional Court's test for tagging bills, as established in Tongoane versus the minister of agriculture and land affairs.

Duminy said that in this judgment, the court stressed that legislative competence was not the key to unlocking when section 76 should be used, but that it lay rather in those measures that substantially affected the provinces.

"If there is doubt as to how a bill should be tagged, Tongoane strongly suggests that the benefit should be in favour of enhancing, not diminishing, the role of the provinces."

If the case is successful, the law would need to be sent back to Parliament for deliberation for a second time.

In terms of remedy, should the application be successful, the DA said it would have no problem in principle with suspending a declaration of invalidity for up to 18 months to permit Parliament to pass the amendment act anew.

"It is submitted that, if the court suspends the order, the amendment act should continue to apply, with one exception: there should be a moratorium on prosecutions of any crimes that rely on presumptions," Duminy said.

He said it would be unjust to prosecute a person for non-compliance with the act if it was unconstitutional.

Should the amendment act not be re-enacted within the suspension period, the DA felt the declaration of invalidity should take effect and be fully retrospective.

This meant Sanral would be obliged to repay all tolls paid in relation to the amendment bill.

Convictions based on the amendment bill should then also be set aside.


Source : Sapa /je/rod/cls
Date : 04 Mar 2014 15:34

 

[MKFrost]

If the case is successful, the law would need to be sent back to Parliament for deliberation for a second time.

Will this mean a refund to everybody... guess not.....

 

[LazyLion]

The Democratic Alliance's assertion that the e-tolling bill will substantially affect provincial competencies is incorrect, the Western Cape High Court heard on Tuesday.

Jeremy Gauntlett, for President Jacob Zuma and the National Treasury, said the DA's approach lacked critical context in terms of spheres of government.

"We have not adopted a federal state... There is no Vatican City in South Africa," he told Judge Owen Rogers.

"All of us necessarily work and carry out our lives in spheres of local, provincial and national government simultaneously."

He argued that the Transport Laws and Related Matters Amendment Bill did not pass the "substantial measure" test of being tagged as a matter for provincial debate in Parliament.

"The de facto position is that the type of e-tolling facilitated by the collection method envisaged by the amendment act is, and remains, highly unusual. It is only appropriate in very confined circumstances," read his heads of argument.

"From Cabinet's and a public finance perspective, approving government funding for such extraordinary projects is not a matter which is 'possible' to such a degree that the mere notional ability could ever constitute a 'substantial measure'."

Zuma signed the amendment bill into law in September, in effect opening the way for e-tolling in Gauteng.

The bill amended the SA National Roads Agency Limited (Sanral) and National Roads Act to allow the collection of electronically recorded tolls and the implementation of the electronic toll collection system.

The bill was tagged as a section 75 bill -- to be debated only in the National Assembly -- rather than a section 76 bill, which is debated in both the National Assembly and the National Council of Provinces (NCOP).

The DA has applied to have the bill declared unconstitutional and invalid because it has not been passed according to what it deems to be proper procedure, which would be with input from the provinces.

The respondents in the application are Zuma, the Speaker of the National Assembly Max Sisulu, NCOP chairman Johannes Mahlangu, Transport Minister Dipuo Peters, Sanral, and the National Treasury.

The political party's legal argument is based on the Constitutional Court's test for tagging bills, as established in Tongoane versus the minister of agriculture and land affairs.

Willie Duminy, for the DA, said that in this judgment the court stressed that legislative competence was not the key to unlocking when section 76 should be used, but that it lay rather in those measures that substantially affected the provinces.

"If there is doubt as to how a bill should be tagged, Tongoane strongly suggests that the benefit should be in favour of enhancing, not diminishing, the role of the provinces."

But Gauntlett argued that the DA was misconstruing the Tongoane test and applying it in the wrong manner.

"The amendment act complements or updates the previous system under the Sanral act. It does not satisfy the 'substantial measure' test because it does not purport to replace the Sanral act and it does not provide a new regime," said Gauntlett.

He said the act did thus not qualify as a section 76 bill.

Terry Motau, for Sisulu and Mahlangu, accused the DA of enhancing its political campaign at the expense of litigation over e-tolling.

Rogers said that while it may have an interest in promoting itself politically, it was not the only party to have launched applications against e-tolling related matters.

If the case is successful, the law would need to be sent back to Parliament for deliberation for a second time.

In terms of remedy, should the application be successful, the DA said it would have no problem in principle with suspending a declaration of invalidity for up to 18 months to permit Parliament to pass the amendment act anew.

"It is submitted that, if the court suspends the order, the amendment act should continue to apply, with one exception: there should be a moratorium on prosecutions of any crimes that rely on presumptions," Duminy said.

He said it would be unjust to prosecute a person for non-compliance with the act if it was unconstitutional.

Should the amendment act not be re-enacted within the suspension period, the DA felt the declaration of invalidity should take effect and be fully retrospective.

This meant Sanral would be obliged to repay all tolls paid in relation to the amendment bill.

Convictions based on the amendment bill should then also be set aside.

Gauntlett said the DA had been silent on the criminal prosecution aspect in its notice of motion and founding and replying affidavits.

"This in itself is a basis for rejecting this impermissible attempt to introduce extraordinary relief... it is also demonstrably inappropriate, beyond this Court's jurisdiction and lacks utility."

The case is to continue on Wednesday.


Source : Sapa /je/lp
Date : 04 Mar 2014 17:49

 

[LazyLion]

The Democratic Alliance's assertion that the e-tolling Bill will substantially affect provincial competencies is incorrect, the high court in Cape Town heard on Tuesday.

Jeremy Gauntlett, for President Jacob Zuma and the national treasury, said the DA's approach lacked critical context in terms of spheres of government.

"We have not adopted a federal state ... There is no Vatican City in South Africa," he told Judge Owen Rogers. "All of us necessarily work and carry out our lives in spheres of local, provincial and national government simultaneously."

He argued that the Transport Laws and Related Matters Amendment Bill did not pass the "substantial measure" test of being tagged as a matter for provincial debate in Parliament.

"The de facto position is that the type of e-tolling facilitated by the collection method envisaged by the amendment act is, and remains, highly unusual. It is only appropriate in very confined circumstances," read his heads of argument.

"From Cabinet's and a public finance perspective, approving government funding for such extraordinary projects is not a matter which is 'possible' to such a degree that the mere notional ability could ever constitute a 'substantial measure'."

Tagged as section 75 Bill
Zuma signed the amendment Bill into law in September, in effect opening the way for e-tolling in Gauteng.

The Bill amended the South African National Roads Agency Limited (Sanral) and National Roads Act to allow the collection of electronically recorded tolls and the implementation of the electronic toll collection system.

The Bill was tagged as a section 75 Bill – to be debated only in the National Assembly – rather than a section 76 Bill, which is debated in both the National Assembly and the National Council of Provinces (NCOP).

The DA has applied to have the Bill declared unconstitutional and invalid because it has not been passed according to what it deems to be proper procedure, which would be with input from the provinces.

The respondents in the application are Zuma, the speaker of the National Assembly Max Sisulu, NCOP chairperson Johannes Mahlangu, Transport Minister Dipuo Peters, Sanral, and the national treasury.

The political party's legal argument is based on the Constitutional Court's test for tagging Bills, as established in Tongoane versus the minister of agriculture and land affairs.

Willie Duminy, for the DA, said that in this judgment the court stressed that legislative competence was not the key to unlocking when section 76 should be used, but that it lay rather in those measures that substantially affected the provinces.

"If there is doubt as to how a bill should be tagged, Tongoane strongly suggests that the benefit should be in favour of enhancing, not diminishing, the role of the provinces."

Wrong manner
But Gauntlett argued that the DA was misconstruing the Tongoane test and applying it in the wrong manner. "The amendment Act complements or updates the previous system under the Sanral Act. It does not satisfy the 'substantial measure' test because it does not purport to replace the Sanral Act and it does not provide a new regime," said Gauntlett.

He said the Act did thus not qualify as a section 76 Bill.

Terry Motau, for Sisulu and Mahlangu, accused the DA of enhancing its political campaign at the expense of litigation over e-tolling.

Rogers said that while it may have an interest in promoting itself politically, it was not the only party to have launched applications against e-tolling related matters. If the case is successful, the law would need to be sent back to Parliament for deliberation for a second time.

In terms of remedy, should the application be successful, the DA said it would have no problem in principle with suspending a declaration of invalidity for up to 18 months to permit Parliament to pass the amendment Act anew.

"It is submitted that, if the court suspends the order, the amendment Act should continue to apply, with one exception: there should be a moratorium on prosecutions of any crimes that rely on presumptions," Duminy said.

'Unjust'
He said it would be unjust to prosecute a person for non-compliance with the Act if it was unconstitutional.

Should the amendment Act not be re-enacted within the suspension period, the DA felt the declaration of invalidity should take effect and be fully retrospective.

This meant Sanral would be obliged to repay all tolls paid in relation to the amendment Bill. Convictions based on the amendment Bill should then also be set aside.

Gauntlett said the DA had been silent on the criminal prosecution aspect in its notice of motion and founding and replying affidavits. "This in itself is a basis for rejecting this impermissible attempt to introduce extraordinary relief ... it is also demonstrably inappropriate, beyond this Court's jurisdiction and lacks utility."

The case is to continue on Wednesday.

– Sapa

 

[LazyLion]

PROVINCES MUST DEBATE E-TOLLS: OUTA

Provincial legislatures must insist on debating the e-tolling legislation, the Opposition to Urban Tolling Alliance (Outa) said on Wednesday.

"There can be no argument against the fact that an e-toll system introduced within the confines of any urban area will have a considerable impact on road congestion, maintenance, and other pertinent matters at a provincial level," said spokesman John Clarke.

"To exclude the provinces in bills of this nature is simply outrageous."

President Jacob Zuma signed the amendment bill into law in September, in effect opening the way for e-tolling in Gauteng.

The bill amended the SA National Roads Agency Limited (Sanral) and National Roads Act to allow the collection of electronically recorded tolls and implementation of the electronic toll collection system.

Clarke said to bypass provincial legislatures was to show contempt for the public interest and the constitutional rights of South African citizens.

The Democratic Alliance has applied to the Western Cape High Court to declare the legislation governing e-tolling unconstitutional.


Source : Sapa /mm/jk
Date : 05 Mar 2014 11:15

 

[LazyLion]

Amendment act not vital: SANRAL

The Transport Laws and Related Matters Amendment Act has not made vital and substantial changes to provinces, the Western Cape High Court heard on Wednesday.

"The incremental utility of this amendment is extremely small," said David Unterhalter, for the SA National Roads Agency Limited (Sanral).

He said the Gauteng Freeway Improvement Project and "a blunter system" of e-tolling could still have been implemented.

"It would have been entirely possible had the amendments not taken place."

He was referring to amendments made to the Sanral and National Roads Act, which President Jacob Zuma signed into law in September last year.

The amendments allowed for the collection of electronically recorded tolls and the implementation of the electronic toll-collection system.

The Democratic Alliance took Zuma, Sanral, and four others to court to have the amendment bill declared unconstitutional and invalid because it had not been passed through Parliament according to what it deemed to be proper procedure, which would be with input from the provinces.

The bill was tagged as a section 75 bill -- an ordinary bill not affecting provinces -- rather than a section 76 bill, which does affect provinces.

Unterhalter argued that the amendments would not pass the test of falling within a functional area of concurrent national and provincial legislative competence, nor the test of introducing a substantial effect.

As an example of the second test, he referred to an amendment regarding presumptions to be made regarding tolling.

The amendment allowed Sanral to presume that an owner of a vehicle was liable to pay a toll in the absence of evidence to the contrary when demanding payment, or prosecuting for failure of payment.

The amendment also allowed for electronic evidence, such as an e-tag, to be presumed accurate and used to prove an alleged contravention.

Unterhalter said although the amendment made it easier to collect toll monies, liability was still in place before that.

Judge Owen Rogers said he did not doubt that the presumption made it much easier for Sanral to do its job and that without it, many might default on payment.

Unterhalter said one could not test a system based on how many people might default.

"There seems to be widespread resistance... it's something that road users resent," replied Rogers.

The lawyer was adamant the DA had failed to prove that the whole tolling system would be inoperable without the presumptions.

The DA has said that should the application be successful, it would have no problem in principle with suspending a declaration of invalidity for up to 18 months to permit Parliament to pass the amendment bill anew.

It would ask for a moratorium on prosecutions of any crimes that rely on presumptions in this period.

Should the amendment bill not be re-enacted within the suspension period, the DA believed the declaration of invalidity should take effect and be fully retrospective.

This meant Sanral would be obliged to repay all tolls paid in relation to the amendment bill.

Convictions based on the amendment bill should then also be set aside.


Source : Sapa /je/jk/rod/ks
Date : 05 Mar 2014 14:37

 

[LazyLion]

E-tolling judgment reserved

Judgment on whether the e-tolling legislation is unconstitutional and invalid was postponed in the Western Cape High Court on Wednesday.

Judge Owen Rogers said he would need time to deliberate on arguments around the tagging of the Transport Laws and Related Matters Amendment Act.

"I cannot fix a date... for the giving of judgment, but I anticipate it will be in about two weeks."

The Democratic Alliance approached the court to have the amendments declared unconstitutional and invalid because they had not been passed according to what it deemed to be proper procedure, which would be with input from the provinces.

The bill was tagged as a section 75 bill -- an ordinary bill not affecting provinces -- rather than a section 76 bill, which does affect provinces.

The respondents in the application are President Jacob Zuma, National Assembly Speaker Max Sisulu, National Council of Provinces chairman Mninwa Mahlangu, Transport Minister Dipuo Peters, the SA National Roads Agency Limited (Sanral), and the National Treasury.

On Tuesday, Willie Duminy, for the DA, argued that the amendments to the Sanral and National Roads Act had knock-on effects for provinces.

"The proposition of the applicants... is that these measures make it possible to establish this open road e-tolling system, and that in itself extends the scope, in practical purposes, of where tolling can be implemented," Duminy said at the time.

But Jeremy Gauntlett, for Zuma and the National Treasury, argued that the bill did not pass the "substantial measure" test of being tagged as a matter for provincial debate in Parliament.

"The de facto position is that the type of e-tolling facilitated by the collection method envisaged by the amendment [bill] is, and remains, highly unusual. It is only appropriate in very confined circumstances," read his heads of argument.

"From Cabinet's and a public finance perspective, approving government funding for such extraordinary projects is not a matter which is 'possible' to such a degree that the mere notional ability could ever constitute a 'substantial measure'."

On Wednesday, David Unterhalter, for Sanral, said the amendments had not made vital and substantial changes to provinces.

"The incremental utility of this amendment is extremely small," he said.

He said the Gauteng Freeway Improvement Project and "a blunter system" of e-tolling could still have been implemented.

"It would have been entirely possible had the amendments not taken place," he said.

Duminy argued it was irrelevant whether a bill was necessary or unnecessary.

"Even if an unnecessary bill is introduced in Parliament, it must be tagged," he said.

The DA has said that should the application be successful, it would have no problem in principle with suspending a declaration of invalidity for up to 18 months to permit Parliament to pass the amendment bill anew.

It would ask for a moratorium on prosecutions of any crimes that rely on presumptions in this period.

Should the amendment act not be re-enacted within the suspension period, the DA believed the declaration of invalidity should take effect and be fully retrospective.

This meant Sanral would be obliged to repay all tolls paid in relation to the amendment bill.

Convictions based on the amendment bill should then also be set aside.

Gauntlett said the DA had been silent on the criminal prosecution aspect in its notice of motion and founding and replying affidavits.

"This in itself is a basis for rejecting this impermissible attempt to introduce extraordinary relief... it is also demonstrably inappropriate, beyond this Court's jurisdiction and lacks utility."


Source : Sapa /je/jk/rod/lp
Date : 05 Mar 2014 15:30