/ 28 September 2012

E-tolling case an opportunity for Concourt to define its ambit

Outa argued that e-tolling would burden commuters to the tune of R21.568billion
Outa argued that e-tolling would burden commuters to the tune of R21.568billion

In the order  the Opposition to Urban Tolling Alliance (Outa) consortium had been granted a temporary interdict against the South African Roads Agency Limited (Sanral) and its proposed e-tolling of Gauteng roads.

The original decision had been greeted with acclaim by many, but wiser counsel warned that it would have a serious effect on government finances during the period in which the interdict operated.

To restate the essentials of the dispute: Outa argued that e-tolling would burden commuters to the tune of R21.568billion, this being the cost of the new system – more than the actual cost of the road-upgrading programme. In the court's view, the decision to implement this e-tolling system was irrational and hence stood to be reviewed and set aside by a court. During the period in which the review was to be launched and then determined, Outa sought and obtained an interim interdict to restrain the implementation of e-tolling.

In general, appeals against interim interdicts are rare because, by their nature, they are temporary and endure only until the main dispute has been properly determined by a court. In its decision last week, the Constitutional Court rehearsed the standard requirements for an interim interdict, namely the existence of a prima facie right held by the applicants, a reasonable apprehension of irreparable or imminent harm and a balance of convenience that favours the applicant. The court assumed, in favour of Outa, that it had shown a prima facie right, although the judgment is somewhat unclear about whether an allegation of a breach of fair administrative procedures is sufficient to make a case for such a right.

This anxiety follows upon a line in the majority judgment of Deputy Chief Justice Dikgang Moseneke, that interim interdicts are designed to restrain future conduct and not decisions already made. This leaves ambiguous the issue of the restraint of future conduct that is based on a decision already taken but is flawed because of procedural irregularity.

The court also cast doubt on whether Outa had shown that commuters would suffer irreparable damage: it suggested that, were the e-tolling to be set aside by a court after the final review, commuters could then sue Sanral on the basis of an enrichment claim. But the core finding on which Outa came a very distant second in the appeal turned upon the balance of convenience. The court focused squarely on the doctrine of separation of powers. In its opinion, the key question a court is required to ask in such case is whether the granting of an interdict would "cut across the proper exercise of a power or duty that the law has vested in the authority to be interdicted".

Function of the legislature
In surprisingly harsh terms for the Constitutional Court, it spoke of the "deafening silence" of the North Gauteng High Court "on the overarching consideration of separation of powers". Hence, the fault of the Gauteng court was to fail to engage with the issue of whether the powers against which restraint was sought were within the exclusive domain of the executive or the legislature.

In this case, the decision of how to raise finance for the upgrading of roads is manifestly a core function of the legislature and executive. Had Outa shown that the right under attack was one contained in the Bill of Rights, the balance of convenience could have been determined in favour of the applicants. But this was not the case and, moreover, the effect of the interim interdict was to extend the delay in implementation of e-tolling, increasing the burden on the state by some R2.76billion. On this basis, the balance of convenience was clearly against Outa and hence against the granting of an interdict.

This is unquestionably a most important judgment. The relatively harsh rebuke to the high court may reveal the anxiety of the Constitutional Court to ensure that courts do not overreach their competence and interfere in core decision-making that is best left to the other arms of government.

Although the decision of the Constitutional Court is clearly correct, it appears that the court was keen to seize the opportunity to show that the South African judiciary is acutely conscious of not interfering in core areas of legislative and executive competence.

Yet the court, as illustrated in particular in the concurring judgment of Justice Johan Froneman, is conscious of the importance of interim interdicts, even when granted against the executive, in cases where an applicant shows, prima facie, that a constitutional right is being breached by an executive branch and will suffer irredeemable harm if the act is not temporarily halted.

That awareness notwithstanding, it would be a brave person who bets against this decision being employed in a number of cases to justify an appeal by a government department or agency when an interim interdict has been granted against it. Thus, as important as this judgment is as an assertion of the role of courts, the boundaries may be tested – and more than once – by a government department disgruntled with being held accountable, even where the facts do not clearly (or at all) dictate in favour of judicial abstention.