Govt takes e-toll challenge to ConCourt

Johannesburg - Finance Minister Pravin Gordhan has made an unusual appeal to the Constitutional Court in a bid to set aside the high court order halting e-tolling, according to reports on Wednesday.

In an affidavit, he warns that South Africa would face a dark economic future if the order was not set aside urgently.

According to Beeld newspaper the appeal application papers were handed to Chief Justice Mogoeng Mogoeng at the Constitutional Court on Tuesday.

Business Day newspaper reported it was an unusual move for Gordhan and his colleagues to approach the Constitutional Court directly, rather than appealing to the high court.

In an affidavit Gordhan says South Africa would have to brace itself for negative international credit ratings.

Essential services to schools, hospitals and roads would be adversely affected if the temporary court order remained in place until a revision process, and the subsequent appeals, were concluded.

Gordhan regards his request as so urgent that he asked Mogoeng to convene the Constitutional Court during its annual July recess to hear the application, Beeld reported.

His chief objection to the interim court order issued by Judge Bill Prinsloo in the High Court in Pretoria on April 28, is that Prinsloo ignored the constitutional principle of separation of powers.

The Opposition to Urban Tolling Alliance (Outa) applied to have e-tolling halted.

Gordhan says the courts do not have the power to make decisions about the validity of government policy, or how the government generates revenue.

Furthermore, he says the Treasury would not be able to do any long-term planning if the courts issued orders derailing the planning process.

Business Day reported that 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".

The high court judgment could set "a precedent for future judicial intervention along similar lines", he warns.

It was imperative that the Constitutional Court considered the matter to "determine the limits of this kind of judicial intervention", Gordhan says.

Outa spokesperson Wayne Duvenhage told Sapa that the court papers had been lodged.

"Their (government's) argument is based around its right to introduce policy that it deems appropriate. If they can't do that, then they say it could damage the country's economy.

"We are arguing that it is not the court interdict that is the issue, it is about the poor decisions around e-tolling.

"Government cannot introduce policies that are oppressive on the country's people. Policies need to be reasonable," he said.

The other applicants in the case are the transport department, Gauteng's roads and transport MEC, the water and environment affairs department and its director general.

The high court order prevents the SA National Roads Agency Limited (Sanral) from levying or collecting e-tolls pending the outcome of a judicial review. Sanral CEO Nazir Alli resigned on May 7.

Government spokesperson Jimmy Manyi recently said a review would be done of Constitutional Court rulings to assess "the impact of the judgments of the Constitutional Court on the transformation of society".

President Jacob Zuma appointed Mogoeng as Constitutional Court Chief Justice in a storm of controversy last September, to replace retired Judge Sandile Ngcobo.

Mogoeng was regarded as conservative and relatively inexperienced after having served less than two years in the Constitutional Court before his appointment. 

Patrick Winter533 2012-05-23 09:59:07 AM
If the constitutional court buckles on this, considering their mandate, then whats the point of having it in the first place. Secondly this will determine a precedent that will undermine the electorate forever. If they win 'legally', we must be sure to bury our wallets.
peter.wessels.509 2012-05-23 10:07:00 AM
If ETolling is cancelled many ANC bigwigs stand to loose a lot of money. So I think they will persuade the court to find in Gorhan's favour. Typical of ANC robbers doing the man in the street.
Johnnie Vercuil 2012-05-23 10:32:42 AM
Since when does the SARS think they control the Justice system. Going in from the back - this whole lot smelt from the beginning, when President Zuma and Mr.Gordhan went to the high court(to intimidate the court?) and show their faces there. What makes this so urgent for Mr. Gordhan ?.
Duminé Jacobs 2012-05-23 10:32:42 AM
The Constitution is the Law of the Land. It protects us all! It was put in place specifically to uphold citizen's rights, but that includes those in government. I am confident those judges will look at all the issues an make the right decision. They haven't let us down yet and have always been very fair. Of all the courts in the land I am most proud of this one. It was a brilliant idea to have this court and it's decisions should be respected by all (including government). We the people have come to rely on the CC because it's becoming very clear that democracy is a term that's not understood by those who run this country. The ANC may have fought for democracy, but they are NOT it's keepers. The CC is. We will be watching you Chief Justice Mogoeng Mogoeng!!