Tolls ruling overstepped court power — Gordhan
THE North Gauteng High Court’s decision to interdict e-tolling on Gauteng’s highways constitutes unlawful interference by the judiciary in the affairs of the government, Finance Minister Pravin Gordhan, the South African National Roads Agency (Sanral) and government departments argue in their appeal against the decision. In an unusual move, Mr Gordhan and his colleagues have approached the Constitutional Court directly, rather than lodging the appeal with the high court.
In an affidavit lodged with the application, Mr Gordhan says at the heart of the dispute “lies a fundamental issue regarding the separation of powers and whether or not a court can exercise discretionary judgment over a government policy decision”. If left unchecked, the e-tolling judgment could set “a precedent for future judicial intervention along similar lines”. Mr Gordhan said it was therefore imperative that the Constitutional Court considered the matter to “determine the limits of this kind of judicial intervention”.
Judge Bill Prinsloo’s judgment, handed down on April 28, favoured an application brought by the Opposition to Urban Tolling Alliance (Outa) and interdicted Sanral from commencing tolling on Gauteng’s highways prior to a full judicial review of the project. But Mr Gordhan argued the interdict was a judgment of “long-lasting consequence” because the review would take at least a year as the litigation went through the courts.
Meanwhile, the delay would cause irreparable harm to the government and the country. Not only would the government be prevented from collecting revenue that it was empowered by law to collect to meet its debt and other financial obligations, but the harm would extend to the financial standing and reputation of the government, Mr Gordhan said. “This cannot be allowed to continue and in these circumstances, the applicants are constrained to apply to this court for leave to appeal against the judgment.”
That the courts had “unlawfully” strayed into the terrain of the executive was made all the more serious by the fact that the decisions around e-tolling were based on rational policies and were longstanding, Mr Gordhan argued. Fiscal policy decisions, in particular, were “sensitive” and were decisions that could only be made by the government. The government’s decision to frame the e-tolling dispute in constitutional terms and to ask the Constitutional Court to deliberate on the matter follows an unresolved debate over interpret ing the separation of powers.
Several high-profile figures in the government and the African National Congress have expressed frustration over what they perceive as judicial interference in the work of the executive. This follows several court judgments in which government decisions have been overturned. The cases prompted President Jacob Zuma to remark more than once that the judiciary was not a government and could not simply review all government policies.
“They cannot be elevated to something they are not supposed to do. Their independence is relative,” he told Parliament in March. Mr Gordhan said in his affidavit that government policy documents had indicated as far back as 1996 that tolling would form part of the financing arrangements for roads. That the Gauteng Freeway Improvement Project would be tolled was confirmed by the Cabinet in 2007 and was a fiscal policy decision that only the government — and not the courts or Outa — could make, he argued.
“Ultimately it is for policy makers, elected by and accountable to those they represent, to choose between various forms of revenue collection,” the affidavit said. “What the applicants (Outa) in effect sought … is a directive by the court, cutting across a decision of several years’ standing and sequence of other ministerial and other decisions … I am advised that such intervention in public finance is unprecedented and in breach of the division of powers.
” Mr Gordhan’s affidavit also attacks Judge Prinsloo’s judgment on the grounds that he failed to properly assess the damage of an interdict. “He incorrectly thought that the harm that would be experienced by commuters outweighed the harm that would befall government and SA as a whole,” he said. As a direct consequence of the interdict, Sanral was downgraded two notches by ratings agency Moody’s and was forced to suspend its market-making activities.
The adverse credit rating would affect all bonds issued by state-owned enterprises such as Eskom and Transnet and would also raise the risk premium in the debt they raised, Mr Gordhan said. This would ultimately have a negative effect on “SA’s reputation and its ability to raise sovereign debt”, he argued. It would also interfere with current and future budgets. The Constitutional Court is likely to allow Outa and the other high court interdict applicants an opportunity to respond to the government’s papers, before deciding whether it will hear the matter.
The other applicants are the Department of Transport, the MEC for roads and transport in Gauteng, the Department of Water and Environmental Affairs and its director-general. Outa confirmed it had received the affidavits lodged by the Treasury and Sanral and it was “preparing responses to defend the appeal”. Spokesman Wayne Duvenhage said:
“Outa is disappointed by the government’s decision to appeal, as by doing so they have clearly indicated their desire to press on with Sanral’s inefficient and unjustified e-tolling plans, as the chosen mechanism to raise funds …. “If e-tolling is allowed to happen, this will become the precedent for all future urban road infrastructure upgrades throughout SA and motorists will be forced to pay very high fees to partially fund the infrastructure costs as well as the extremely costly administration processes proposed by Sanral.”
Mr Duvenhage said he was particularly disappointed, as in recent interactions with Ismail Vadi, MEC for roads and transport in Gauteng and ANC secretary-general Gwede Mantashe an “improved understanding” had been reached. “It is against this backdrop of having meaningful discussions to find a solution that we express our disappointment with the government’s decisions to appeal the interdict and press on with the legal case.”
Source: BusinessDay