It is a truth universally acknowledged that politicians who are corrupt or inclined to to flout the Constitution and abuse the rights of fellow citizens will, in due course, revert to judge-bashing. South African politicians are no exception. But as the Constitutional Court’s latest e-tolling judgment demonstrates, allegations that our Constitutional Court judges are counter-revolutionaries who do not respect the separation of powers doctrine, are both disconcertingly uninformed and spectacularly wrongheaded.
In the judgment of National Treasury and Others v Opposition to Urban Tolling Alliance (OUTA) and Others, the Constitutional Court overturned the interim interdict granted by the High Court in April, which halted the implementation of e-tolling on Gauteng’s improved highway system. In doing so, the Court – for the umpteenth time – confirmed its appropriate respect for the separation of powers doctrine and for the right of the legislature and executive to make lawful and constitutionally compliant policy choices unhindered by interference by meddlesome judges. Put differently, they once again exposed the Constitutional Court bashers as wearing no clothes.
The main judgment – authored by Deputy Chief Justice Dikgang Moseneke – does not deal with the merits of the case and makes no finding on whether the declaration of the highways as toll roads and the use of the e-tolling method to levy the tolls were irregular and unlawful. Instead, it deals with the application of the normal rules for the granting of an interim interdict aimed at freezing the status quo until such time as the merits of a particular case can be decided by the High Court.
A court could only grant such an interim interdict if an applicant had shown that it had a prima facie right (even if it is open to some doubt); that there was a reasonable apprehension that irreparable and imminent harm would follow if the interdict was not granted; that the balance of convenience favoured the granting of the interdict and that there was no other remedy available to protect the rights of the applicant.
But as the Constitutional Court noted, this test must be applied with due regard to the separation of powers doctrine, which is a “vital tenet of our constitutional democracy”. On the one hand, this means that the Constitution requires courts to ensure that all branches of Government act within the law. On the other, “courts must refrain from entering the exclusive terrain of the Executive and the Legislative branches of Government unless the intrusion is mandated by the Constitution itself”.
In applying the test for the granting of an interim interdict, the Constitutional Court focused on the need to balance the various interests – those of the applicant seeking an interim interdict, on the one hand, and those of the government, on the other – and concluded that the High Court had not taken into account the interests of the government and, hence, to what extent the interdict would intrude into the exclusive terrain of another branch of government.
“A court must keep in mind that a temporary restraint against the exercise of statutory power well ahead of the final adjudication of a claimant’s case may be granted only in the clearest of cases and after a careful consideration of separation of powers harm. It is neither prudent nor necessary to define ‘clearest of cases’. However, one important consideration would be whether the harm apprehended by the claimant amounts to a breach of one or more fundamental rights warranted by the Bill of Rights. This is not such a case.”
Moreover, warned Moseneke, a court must recognise in such a case that it is invited to restrain the exercise of statutory power within the exclusive terrain of the Executive or Legislative branches of government and must carefully assess how and to what extent its interdict will disrupt executive or legislative functions.
“A court must carefully consider whether the grant of the temporary restraining order pending a review will cut across or prevent the proper exercise of a power or duty that the law has vested in the authority to be interdicted. Thus courts are obliged to recognise and assess the impact of temporary restraining orders when dealing with those matters pertaining to the best application, operation and dissemination of public resources. What this means is that a court is obliged to ask itself not whether an interim interdict against an authorised state functionary is competent, but rather whether it is constitutionally appropriate to grant the interdict.”
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.
First, the money they had already paid for e-tolling could always be claimed back in the court eventually set aside the imposition of e-tolling. Second, the government had decided that motorists would have to pay for the highway upgrade, whether through e-tolling or another mechanism. Motorists will have to bear the financial burden of the road upgrades, which means that “the harm, if any, to be borne by motorists would be relative but never absent”.
In any case, as the Constitutional Court pointed out, the “uncontested evidence” before the court was “that 99% of the burden of tolling will be borne by more affluent road users who make up the first and second quintile of income earners in Gauteng and that public transport users will be exempt from paying tolls. The harm these users will experience will therefore not be of a pressing or acute kind.”
Besides, in as much as there was any harm and inconvenience to motorists, these resulted from a decision by the Executive about the ordering of public resources, “over which the Executive Government disposes and for which it, and it alone, has the public responsibility”. As the duty of determining how public resources are to be allocated “lies in the heartland of Executive Government function and domain” and as there was no “proof of unlawfulness or fraud or corruption”, it was within the exclusive power and the prerogative of the Executive to decide how to finance public projects.
On the other hand, the High Court had also ignored the very real harm that such an interdict would cause the government. For example, the Minister of Finance calculated that the granting of the interim interdict and the delay in implementing tolling has already cost R2.7 billion, 40% of SANRAL’s estimated 2012 toll revenue. SANRAL’s average monthly expenditure on the GFIP will amount to R601 million for the 2012/13 financial year. In the absernce of tolling, the amount has to be funded by the National Treasury. Moreover, Moody’s Investor Services announced a two notch downgrade in SANRAL’s credit-worthiness rating, apparently in response to the granting of the interim interdict.
Despite these very serious consequences – of which the High Court was warned – the High Court did not “mention a word about the submissions of the government” on separation of powers. In fact, commented the Court, it is unclear whether the High Court had considered the submissions of the government at all.
“The High Court’s deafening silence on the over-arching consideration of separation of powers, taken together with other factors that go to where the balance of convenience rests, entitles this Court to intervene. It should have held that the prejudice that will confront motorists in Gauteng if the interim interdict is not granted does not exceed the prejudice that the National Executive Government, National Treasury and SANRAL will have to endure should the temporary restraining order be granted.”
While careful not to deal with the merits of the case, the judgment does suggest that those who oppose the implementation of e-tolling might have a hard time convincing the Constitutional Court to interfere with what is essentially a policy decision by the Executive. Reading between the lines, one wonders how those opposing the e-tolling decision will be able to convince a court to interfere in a clear policy decision by the executive to use tolling instead of the fuel levy to help pay for the road upgrades. After all, a fuel levy is a regressive tax in that poor people will pay pro-rata more of this tax than they would if tolls were imposed and public transport were excluded from the toll.
This does not mean that e-tolling will go ahead. Political pressure may well force the government to back down – especially if Cosatu – for reasons unknown – decides to continue its opposition to e-tolling, despite the fact that 99% of the burden of e-tolling will fall on the rich. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.