DA to appeal e-toll case dismissal

The Democratic Alliance is set to appeal the judgment handed down by the high court in the Western Cape on Thursday, which dismissed its application challenging the constitutionality of the e-tolling Bill passed by Parliament.

The DA Gauteng premier candidate Mmusi Maimane, who last week flew to Cape Town to represent the party in court with DA Western Cape leader Ivan Meyer, said the ruling was disappointing.

"It is disappointing because it is about giving the people of Gauteng a voice, and that is why we have taken a view that after reading the judgment, we will appeal it at the Constitutional Court," he told the Mail & Guardian.

Parliament, however, issued a statement saying it had been "vindicated" by the Western Cape high court judgment.

"The judgment is a vindication of the parliamentary process, which was followed in the enactment of the Act and the role of the Joint Tagging Mechanism (JTM), in exercising its constitutional function."

The DA claimed in court that the Transport Laws and Related Matters Amendment Bill was incorrectly passed by Parliament and signed into law by President Jacob Zuma, who was the first respondent in the case. 

In his founding affidavit, the DA's chairperson of the federal executive, MP James Selfe, wrote that the Amendment Act enabled Sanral to introduce electronic toll collection systems on declared toll roads throughout the country.

"In particular, the DA contends that the Amendment Act ought to have been passed by Parliament in accordance with the procedures set out in section 76 of the Constitution, and not section 75," wrote Selfe. "The reason for this contention is that the provisions of the Amendment Act, in substantial measure, fall within concurrent provincial legislative competences."

In his 48-page judgement, Judge Owen Rogers outlined how the DA's case was founded on the knock-on effects of the Amendment Act. 

Rogers ruled that the true test in terms of the relevant sections of the Constitution favoured a direct regulation approach based on legislative competence, rather than the knock-on approach.

"The Amendment Act does not intrude upon the right of provinces to legislate in the future of any of the functional areas relied upon by the DA, and does not constitute legislation on any of those matters," Rogers wrote in his lengthy judgment. "If the implementation of the pre-existing Act as amended by the Amendment Act does indeed significantly change traffic patterns, trade and urban development in a particular province, that province will be at liberty, if it regards this as desirable, to enact legislation to alter the law in that province regarding these functional areas, just as province is free to do so if the change in circumstances is brought about in other ways (global financial conditions, the state of the domestic economy, climate change, population movements, laws passed by other provinces and so forth.)

In concluding, Rogers dismissed the application on its merits and ordered that both parties pay their own costs.

Political profile
The respondents had submitted that the DA in instituting this application was seeking to boost its political profile in the run-up to a national election by attacking legislation concerned with e-tolling, a cause which the DA expected to carry popular support, wrote Owen.

However, Owen disagreed on this particular issue in his judgment. "The present case raises genuine and substantive constitutional issues regarding the approach to tagging and the application of that approach to the constitutional validity of the Amendment Act," the judge wrote.

Owen pointed out that on December 3 2013, and apparently in response to a letter from the State Attorney, the DA's attorneys indicated that with a view to saving costs, they were prepared to have the matter postponed but not to a date "in the first half of next year", as the State Attorney had apparently proposed. The DA's attorney said they required the matter to be heard in the first term of 2014.

"It was not unreasonable for the DA to think that five weeks' notice of the date on which the application would be moved would strike the right balance between a) the interests of the respondents in filing papers and preparing themselves for the hearing and b) the interests of the public (and the respondents themselves) in obtaining a prompt determination of the validity of the Amendment Act," Owen wrote.

The judge gave the DA 14 days to file an application for leave to appeal against his judgment.

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