E-Tolling ban lifted

[Citizen X]

"The Constitutional Court lambasted the High Court judgment of Prinsloo J in uncharacteristically harsh language for failing to make such an assessment, pointing out that it was unclear that motorists would suffer irreparable harm if the e-tolling went ahead."
Sharade, facade, a go through the motions kind of strategy...... In my layman's opinion, there was sufficient urgency for the interim order, had the interdict not being executed, we would have been paying to use our very own roads. In principle, tax, fuel levy or even a once off gratuity payment should suffice!

[Dave A]

Sharade, facade, a go through the motions kind of strategy...... In my layman's opinion, there was sufficient urgency for the interim order

I have to say I tend to agree. Government went through the motions and ignored all inputs. They seemed to be committed before they consulted, received absolutely no endorsements for their plan, dismissed without reasons any alternatives proposed, and there's pretty clear evidence that many connecteds had got their fingers in the pie.

And yet the Constitutional Court has a pretty strong track record of making well-reasoned judgements.

So what are we missing?


Does anyone have a link to the actual judgement?

[Blurock]

I think that all we seen from the Bill phase of etolling to the latest developments is a facade. A sharade meant to dupe the SA people into thinking that protracted debate took place, consultations were sufficient, the toll price per km is reasonable, and that South Africans want etolling!
Here the State should have seen its subjects dissatisfaction and just scrapped the whole idea.

Same charade of consultation and inclusive decision making that is applied in the fracking debacle still to hit us. The consequences will be very very dear indeed!

[Citizen X]

The separation of powers argument cuts both ways!!! Sanral can't play two roles 1: They your creditor, you owe them money as the debtor and 2: They also the law enforcement body to enforce your payment and 3: Nemo iuris plus rule: no one can be a judge in his own matter..Sanral will be judging you as well!
De Lange v Smuts 1998(3) SA(CC)
Separation of powers: Creditor cannot be given rights of the Executive i.e law enforcement rights: They bound to being bias in such enforcement in their favour: They also bound to abuse such law enforcement powers
1. When the notion of Sanrail being granted law enforcement powers made the public rounds, it immediately struck a cord with me. It brought to recollection a leading case wherein a creditor was given law enforcement powers and the constitutional court ruled that it was in essence unconstitutional for a creditor to have law enforcement powers based on the separation of powers doctrine;
2. Owing to the fallibility of human memory I could not recall the name of the case or the LLB subject that it belonged to, so started to look through my old textbooks and notes, and just like it goes when you looking for something, the thing you looking for will be in the last place you look. I found it! It rightfully belongs to the subject Constitutional law;
3. There was a subsection of the insolvency act that provided that if a person was called to appear before a meeting of creditors and this person either refused to be sworn in or to produce a required book or document or answer any question the presiding officer could commit such a person to prison!
4. The central idea is that a non judicial officer(someone not of the courts) cannot commit a person to prison. The separation of powers allow for the Judiciary, The Executive and the legislature. Judge Ackerman concluded that because non judicial governmental officers lack the independence of the judiciary, non judicial officers cannot commit an uncooperative witness to prison;
5. The situation does somewhat change when you give a non judicial officer(Sanrail) powers of the executive or judiciary which is what is happening now. If Sanrail are given law enforcement powers it simply means that your creditor, the person who you owe money to can now wave a legal stick to you. The day this happens this will be a day that will live in infamy. Sanrail could prove to be the worst creditor you’ve ever known!!!
6. “Judge Sachs agreed with Judge Ackermann’s majority judgment, but on separate grounds. He evaluated the constitutionality of the subsection within the context of separation of powers rather than that of freedom rights. He then applied the principle that only judicial officers should have the power to punish misconduct or penalise recalcitrance by means of imprisonment, and concluded that the subsection contravenes the principle of separation of powers as contemplated by the Constitution because it entrusts authority to order incarceration to persons who are not judicial officers. Judge Sachs consequently agrees with Judge Ackermann’s distinction, which allows magistrates to order committal to prison and denies that power to non-judicial government officials.”



“In his majority judgment Judge Ackermann held that the subsection concerned is unconstitutional only to the extent that it authorises a presiding officer who is not a magistrate to issue a warrant committing an examinee at a creditors’ meeting to prison.”

[sterne.law@gmail.com]

The court was not asked to look at the merits, merely if the interdict should be granted. The merits of the decision will be decided at the review. The other issue is the separation of powers, which the Constitutional Court took serious issue with.
In terms of an interdict the party seeking it must show
There is a prima farce right at stake
There has been or will be a threat to that right
The balance of convenience favors the applicant
The nut shell answer is that - if the tolls are ruled inadmissible, then the motorists can still be refunded, and thus suffer no harm. However, if the toll is declared permissible but the interdict had remained in place, the government is unable to recover the money they would have gained. Add to that the losses due to interest etc, act.
Therefore the balance of convenience is against Urban Tolling.

[sterne.law@gmail.com]

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
National Treasury and Others v Opposition to Urban Tolling Alliance and Otherso>

Case CCT 38/12
[2012] ZACC 18
Hearing Date :15 August 2012
Judgement Date: 20 september2012
Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.


On Thursday, 20 September 2012, the Constitutional Court handed down judgment on an urgent direct appeal by the National Treasury and South African National Roads Agency Limited (SANRAL) against a temporary restraining order granted by the North Gauteng High Court, Pretoria (High Court) preventing SANRAL from implementing and collecting tolls.

During 2007, Cabinet approved an extensive upgrade of roads in the Gauteng province as part the Gauteng Freeway Improvement Project (GFIP). The upgrade entailed extensive civil engineering work by SANRAL. In order to finance the roads upgrade, SANRAL incurred debt with third parties in the amount of R21 billion. In 2008, SANRAL took a decision, acting under the South African National Roads Agency Limited Act (SANRAL Act) and with the approval of the Minister of Transport, to declare certain Gauteng roads as toll roads.

Nearly four years later, on 23 March 2012, Opposition to Urban Tolling Alliance (OUTA) and other respondents, approached the High Court on an urgent basis for an interim interdict restraining SANRAL from levying and collecting toll on the Gauteng roads, pending the final determination of their application to review and set aside the decisions of: (a) SANRAL and the Transport Minister to declare the Gauteng roads as toll roads; and (b) of the Director General to grant certain environmental approvals related to the GFIP. Prinsloo J heard the urgent application and granted the interim interdict sought by the respondents.

In this Court, the applicants contended that the grant of the interdict was inconsistent with the constitutional principle of separation of powers. They questioned the suitability of the common law test that the High Court applied when it granted the interdict and urged this Court to adapt the test in circumstances where the grant of an interim interdict trespasses on the exclusive domain of the National Executive.

The respondents submitted that leave to appeal should be refused because ordinarily an interim order is not appealable. On the merits, they argued that the commencement of 2 e-tolling before the review of the impugned decisions will cause irreparable financial harm to many thousands of motorists in Gauteng. They added that the executive decisions under attack were not political, economic or so policy-laden as to warrant judicial deference.

In the main judgment, authored by Moseneke DCJ, this Court explained that the Road Freight Association’s application for leave to intervene was dismissed on the basis that it did not show a direct and substantial interest in the appeal and that the Democratic Alliance’s application to be admitted as amicus curiae was refused because its contentions were neither non-partisan nor different to those of the parties.

The Court held that the interim order had an immediate and irreparable effect and was thus appealable but that it was not necessary for the Court to develop the common law test for the grant of an interim interdict because it is already sufficiently flexible to permit a court to consider the principle of separation of powers when it weighs where the balance of convenience rests.

The judgment concluded that the interim interdict must be set aside because the High Court failed to consider or to give effect to the constitutional imperative of separation of powers. It held that beyond the common law, separation of powers is a vital tenet of our 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. It held that 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 Court went on to hold that the High Court’s deafening silence on the important consideration of separation of powers entitled it to intervene. The High Court should have held that the prejudice that would confront motorists in Gauteng if the interim interdict were not granted did not exceed the prejudice that the National Executive, National Treasury and SANRAL would have to endure were the temporary restraining order granted.

The Court reasoned that the harm and inconvenience to motorists, on which the High Court relied, resulted from a National Executive decision about the ordering of public resources, over which the Executive Government disposes and for which it, and it alone, has the public responsibility. Thus, 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. 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. It bears repetition that a court considering the grant of an interim interdict against the exercise of power within the camp of executive government or legislative branch must have the separation of powers consideration at the very forefront.

Froneman J, writing separately, concurred in the outcome of the main judgment but differed in some of his reasoning. He adopted a narrower approach for the grant of leave to appeal, 3 and a separate requirement for temporary interdicts sought against the two other national arms of government.

The Court upheld the appeal, set aside the order of the High Court and ordered costs to be costs in the review.

[Blurock]

In my simple layman's opinion all I can understand is that the Government is screwing us again. ...and again ...and again.

The people have said NO!!! What part of no does this government not understand? Is the only alternative to remove them from office altogether?

[ians]

Blurock,i stopped banging my head, i now take medication to slow me down so i can deal with some people, normally sleeping tablets when dealing with goverment departments.