The Democratic Alliance's assertion that the e-tolling Bill will substantially affect provincial competencies is incorrect, the high court in Cape Town heard on Tuesday.
Jeremy Gauntlett, for President Jacob Zuma and the national treasury, said the DA's approach lacked critical context in terms of spheres of government.
"We have not adopted a federal state … There is no Vatican City in South Africa," he told Judge Owen Rogers. "All of us necessarily work and carry out our lives in spheres of local, provincial and national government simultaneously."
He argued that the Transport Laws and Related Matters Amendment Bill did not pass the "substantial measure" test of being tagged as a matter for provincial debate in Parliament.
"The de facto position is that the type of e-tolling facilitated by the collection method envisaged by the amendment act is, and remains, highly unusual. It is only appropriate in very confined circumstances," read his heads of argument.
"From Cabinet's and a public finance perspective, approving government funding for such extraordinary projects is not a matter which is 'possible' to such a degree that the mere notional ability could ever constitute a 'substantial measure'."
Tagged as section 75 Bill
Zuma signed the amendment Bill into law in September, in effect opening the way for e-tolling in Gauteng.
The Bill amended the South African National Roads Agency Limited (Sanral) and National Roads Act to allow the collection of electronically recorded tolls and the implementation of the electronic toll collection system.
The Bill was tagged as a section 75 Bill – to be debated only in the National Assembly – rather than a section 76 Bill, which is debated in both the National Assembly and the National Council of Provinces (NCOP).
The DA has applied to have the Bill declared unconstitutional and invalid because it has not been passed according to what it deems to be proper procedure, which would be with input from the provinces.
The respondents in the application are Zuma, the speaker of the National Assembly Max Sisulu, NCOP chairperson Johannes Mahlangu, Transport Minister Dipuo Peters, Sanral, and the national treasury.
The political party's legal argument is based on the Constitutional Court's test for tagging Bills, as established in Tongoane versus the minister of agriculture and land affairs.
Willie Duminy, for the DA, said that in this judgment the court stressed that legislative competence was not the key to unlocking when section 76 should be used, but that it lay rather in those measures that substantially affected the provinces.
"If there is doubt as to how a bill should be tagged, Tongoane strongly suggests that the benefit should be in favour of enhancing, not diminishing, the role of the provinces."
But Gauntlett argued that the DA was misconstruing the Tongoane test and applying it in the wrong manner. "The amendment Act complements or updates the previous system under the Sanral Act. It does not satisfy the 'substantial measure' test because it does not purport to replace the Sanral Act and it does not provide a new regime," said Gauntlett.
He said the Act did thus not qualify as a section 76 Bill.
Terry Motau, for Sisulu and Mahlangu, accused the DA of enhancing its political campaign at the expense of litigation over e-tolling.
Rogers said that while it may have an interest in promoting itself politically, it was not the only party to have launched applications against e-tolling related matters. If the case is successful, the law would need to be sent back to Parliament for deliberation for a second time.
In terms of remedy, should the application be successful, the DA said it would have no problem in principle with suspending a declaration of invalidity for up to 18 months to permit Parliament to pass the amendment Act anew.
"It is submitted that, if the court suspends the order, the amendment Act should continue to apply, with one exception: there should be a moratorium on prosecutions of any crimes that rely on presumptions," Duminy said.
He said it would be unjust to prosecute a person for non-compliance with the Act if it was unconstitutional.
Should the amendment Act not be re-enacted within the suspension period, the DA felt the declaration of invalidity should take effect and be fully retrospective.
This meant Sanral would be obliged to repay all tolls paid in relation to the amendment Bill. Convictions based on the amendment Bill should then also be set aside.
Gauntlett said the DA had been silent on the criminal prosecution aspect in its notice of motion and founding and replying affidavits. "This in itself is a basis for rejecting this impermissible attempt to introduce extraordinary relief … it is also demonstrably inappropriate, beyond this Court's jurisdiction and lacks utility."
The case is to continue on Wednesday. – Sapa