South Africa

E-Tolls: DA questions constitutionality of new law

By Greg Nicolson 8 November 2013

The Democratic Alliance (DA) has submitted a court application to declare Gauteng e-tolling legislation unconstitutional. While the party says it’s not about the 2014 election, the new challenge is a win-win for Mmusi Maimane’s candidacy for premier. The court application is unlikely to stop the implementation of e-tolls, but those who oppose the controversial system keep stepping up to the plate, ready to dispute the ANC’s claim that it’s part of developing world-class infrastructure. By GREG NICOLSON.

You’ll need a copy of the Constitution handy to understand the DA’s new legal challenge. “We are of the view that the ‘e-tolling’ Bill was incorrectly passed by Parliament and signed into law by President Jacob Zuma,” said Mmusi Maimane on Thursday. “The Constitution makes a distinction between Bills that impact on national government only, and Bills that impact on not just national government but provincial governments as well.”

The DA believes Parliament wrongly classified the legislation, the Transport Laws and Related Matters Amendment Bill (which has been made an Act), as a national matter, using processes under Section 75 rather than Section 76 of the Constitution.

Section 76 of the Constitution states that Bills dealing with concurrent areas of national and provincial legislative competence and other specific areas of legislation, such as those relating to general financial matters and “any provision affecting financial interests of the provincial sphere of government”, need to follow a specific process.

They must go the National Council of Provinces (NCOP) and each province has one vote cast by the provincial leader, mandated by their legislature. At least five provinces need to agree to approve the legislation. The NCOP can pass, amend or reject a Bill. If the NCOP and the National Assembly are at loggerheads, a mediation committee must find an agreement within 30 days or the Bill lapses. That’s unless two-thirds of the National Assembly again passes the Bill.

The DA will take the issue to the High Court, which can refer it to the Constitutional Court. If it wins, the Bill has to begin the process under Section 76 of the Constitution. The legal challenge, in which the DA’s lawyers are confident, is unlikely to make a difference to the final implementation of e-tolls. Maimane says the process will give the ANC a chance to reconsider its stance on an unpopular law. But the party has never shown any indication it will scrap e-tolls.

So, even if the Constitutional Court forces the Bill to be resubmitted and considered by the NCOP, the ANC controls all but one province, and unless they want to unleash a river of fire and brimstone from party leaders, ANC provinces will vote for the implementation of e-tolls.

Yet court costs are not cheap and the DA’s application has other benefits for the party. Firstly, Maimane’s opposition of e-tolls is one of his key campaign pillars for the 2014 election, but the DA will not encourage civil disobedience. Using the courts shows that the DA is still taking action, even if it may have to accept the system when the legal options run out.

Secondly, if the DA wins the legal challenge, the ANC will look like they have forced e-tolls down the throat of Gauteng motorists, ignoring constitutional requirements and due process.

Thirdly, if the Transport Laws and Related Matters Amendment Bill is debated in the NCOP, Western Cape Premier and DA leader, Helen Zille, will get a chance to put e-tolls at the centre of the election debate, slamming the ANC and its disregard for the interests of the public.

Most importantly, though, the court application can buy the DA time. “The Democratic Alliance has submitted a High Court application that, if successful, could delay the roll out of e-tolling in Gauteng,” Maimane began on Thursday. “If the Bill is declared unconstitutional it would mean that the National Assembly would have to start their deliberations again, and hold another vote on the Bill. The same will need to happen in each and every provincial legislature and the National Council of Provinces,” explained Maimane.

The lengthy process of passing a Bill under Section 76 of the Constitution could run into next year. “This gives the Gauteng legislature, and potentially a new DA majority there after 2014, the chance to vote against the legislation.”

Not a bad move. If the DA wins their court application, Zille gets another chance to publicly criticise the ANC. If the process runs into next year and Maimane happens to become Gauteng premier, he also gets the chance to vehemently oppose it. Even if the Bill still passes, the DA can say they have done their best to keep an election promise.

At the launch of Maimane’s campaign for Gauteng premier, dubbed ‘Believe in Change’, on Saturday in Kliptown, he said, “We were never asked if we wanted e-tolls; we were never given a choice. The only choice we have is to vote against the party that brought us e-tolls. E-tolls will kill jobs and make people poorer.” Speaking on Thursday, he reiterated his claim that e-tolls would harm the economy. He denied it was simply an election issue.

The latest court challenge is one of a number of moves to oppose e-tolls. The Freedom Front Plus is also launching a High Court application to declare the Act unconstitutional, using the same points as the DA. Cosatu remains opposed to e-tolls and will conduct yet another drive-slow today on Gauteng highways. (On Cosatu, Maimane questioned its commitment to challenging e-tolls, asking, “Will the real Cosatu please stand up?”)

Last week, at a march in Johannesburg, the Economic Freedom Fighters (EFF) gave government two weeks to scrap the system.

“We give you a notice that we shall embark on both civil disobedience and direct action to render your e-tolls dysfunctional,” said EFF spokesperson Mbuyiseni Ndlozi. “We demand that government announces in two weeks that people are free from the anti-African e-tolls of slavery.”

The ANC maintains that e-tolls are part of improving South Africa’s infrastructure. Speaking last week, ANC Secretary General Gwede Mantashe said e-tolls should not be turned into a “gogga”. Rather than an insect eating away at the livelihoods of South Africans, faced with rising prices, e-tolls are “are funding mechanism for world-class infrastructure”, said Mantashe.

Speaking as ANC president, Zuma last month said, “With regards to road construction, Gauteng has built many kilometres of new 8-10 lane freeways built at a cost of about R20 billion. This is more than our national roads budget for one year. The roads are to be tolled to pay back the money we borrowed to build the freeways. Our policy is that users should pay for extra government expenses.” (It was the same discussion in which he said we shouldn’t think like Africans in Africa).

He continued to explain that the fuel levy, which Maimane thinks should cover the infrastructure, should not fund the freeway improvement project: “It is not fair to make the whole of South Africa pay for Gauteng’s road use by taxing everyone’s petrol more.”

Opposition to Urban Tolling Alliance (OUTA) member John Clarke applauded the DA’s court challenge. OUTA’s multiple appearances in court to impose an interdict on the implementation of e-tolls didn’t get the desired result, but Clarke said he hoped the DA’s efforts could prove the irrationality of the system. Issues of transparency, social justice and morals are involved, said Clarke, who added that OUTA is currently being reconstituted from its original structure established to fight e-tolls in the courts.

The DA also plans to challenge e-tolls in other ways, which Maimane said would be made public next week. DM

Photo: Cars drive below a road toll in Johannesburg (REUTERS/Siphiwe Sibeko)

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