E-tolling and the separation of powers doctrine

Today the Constitutional Court is hearing oral arguments in the appeal by the National Treasury and SANRAL against the interim interdict granted by Prinsloo J in the North Gauteng High Court in April to stop the introduction of e-tolling on several roads in Gauteng.

The case is being billed in some quarters as another battle in an ongoing war that the executive is waging against the judiciary. It is said that the arguments advanced by the Treasury and SANRAL that the High Court had not sufficiently respected the separation of powers doctrine when it granted the interim interdict is something of a smokescreen being deployed by the executive to attack the power of the courts to enforce the Constitution and the rights of ordinary citizens.

In my view, this characterisation is dead wrong. In fact, I am far from convinced that the granting of the interim interdict by Prinsloo J was legally sound at all. On the contrary, the decision of the High Court represents a far-reaching and even dangerous intervention by the judiciary in policy decisions taken by the executive and I would not be surprised if the Constitutional Court overturns the High Court decision.

This is a different question than whether it was politically wise or whether it was sound policy to finance the upgrading of highways in Gauteng through the imposition of a system of e-tolling. It might well be that financing this upgrade via e-tolling was a terrible idea. Given the high cost of operating the e-tolling system, one could plausibly argue that there were far better ways of paying for the road upgrades than through e-tolling. But this is not the constitutional issue that the Constitutional Court is being asked to address.

The High Court found that when granting an interdict in a case like this the usual requirements for the granting of an interim interdict should apply, namely whether the applicants had shown that they had a prima facie right, that there was a well-grounded apprehension of irreparable harm if the interim interdict was not granted, that the balance of convenience favoured the granting of an interdict, and whether or not the applicants had an alternative remedy available to it. Prinsloo J stated that:

There must be a prima facie right on the part of the applicant to the relief sought. The degree of proof required to establish this right is less exacting than in the case of a final interdict. It is usually recognised that the applicant must prove a right which, though prima facie established, is open to some doubt.

In the original application, OUTA applied to set aside the toll declaration decisions on various grounds. At the heart of its contention was the argument that no reasonable administrator could have opted for tolling as the appropriate funding mechanism for the upgrading of roads in Gauteng because of the costs of tolling and the practical difficulties — including difficulties with the enforcement — associated with tolling. The substance of these arguments will only be argued later, but because the case dealt with the granting of an interim interdict to stop the introduction of e-tolling until the case proper had been heard and because the judge merely required OUTA to establish a prima facie right, although open to doubt, Prinsloo J granted the interim interdict.

However, the High Court might well have erred when it applied the ordinary rules for the granting of an interim interdict to a case like this which dealt with the implementation of government policy. In President of the Republic of South Africa v UDM the Constitutional Court held that courts should be slow to grant interim interdicts stopping Government from fulfilling its constitutional and statutory functions. The test in such cases, said the Court, is whether it is “strictly necessary” for the court to do so, on compelling facts.

And in International Trade Administration Commission v SCAW South Africa (Pty) Ltd The Constitutional Court also warned that Courts should be slow to interfere in drastic ways in the work of the other branches of government. The constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings or executive decision making. The principle  of separation of powers has important consequences for the way in which and the institutions by which power can be exercised.

Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the Judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution…. When a court is invited to intrude into the terrain of the executive, especially when the executive decision-making process is still uncompleted, it must do so only in the clearest of cases and only when irreparable harm is likely to ensue if interdictory relief is not granted. This is particularly true when the decision entails multiple considerations of national policy choices and specialist knowledge, in regard to which courts are ill-suited to judge.

Similarly, in Bato Star the Constitutional Court made the point that a “court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government”.  As the Treasury argues in its papers before the Constitutional Court, these cases seem to lay the foundation for a test with a much higher threshold when granting an interim interdict that would stop the implementation of government policies and where the granting of such an interdict might have potentially far-reaching consequences for the credibility of the government in financial markets.

In such cases, argues the Treasury quite convincingly, the courts may only grant interim interdicts impinging upon executive policy decisions in “the clearest of cases” and only where material and irreversible harm is likely to result if the interdict is not granted. A court cannot grant an interim interdict to stop what it believes to be measures that do not embody sound policies. That judgment is entrusted to the nation’s elected leaders. Granting an interdict before a court has actually decided whether the legal actions by the Government are unconstitutional or illegal must be a last resort only.

The Treasury argues that the interdict has unprecedented, wide-ranging and irreparable consequences to Government’s ability to raise sovereign debt and to allocate national revenue to other developmental programmes. They claim that irreparable harm will be cause to Government. Not only did the granting of the interdict open the government to the risk of an immediate R20 billion liability, but also the risk of an adverse national credit rating. Because of the interdict, Government must allocate R270 million to the Gauteng roads upgrade project per month instead of allocating this substantial amount to education, health, infrastructure investment and poverty alleviation programmes.

The effect is immediate and final — children who are not optimally educated during the months of review, patients who do not receive adequate medical treatment, necessary infrastructure development projects which are not started or completed, and cutback on poverty alleviation programmes have acute and irreversible effects on hundreds of thousands of people throughout South Africa.

I find these arguments persuasive. E-tolling might have been a bad idea to start with, but to stop its implementation after the money was raised on international financial markets and already spent on upgrades, was even worse. It exposed our government to financial risks and to possible consequences far beyond the imagination of a mere lawyer like Prinsloo J. Sometimes the demand that our judges should respect the separation of powers doctrine is not used by our government as a stick to beat off a pesky judiciary. Sometimes, just sometimes, our government might have a point.

Of course, there is one problem for the Government. As the High Court was about to hear the application for the granting of an interim interdict and while the Treasury and SANRAL were both arguing convincingly that it would be hugely detrimental to the country to stop the implementation of the e-tolling system, the ANC leadership met with Cosatu and agreed to halt the implementation of e-tolling. Apart from the fact that this move once again blurred the boundaries between party and government, it undermined the authority of Treasury.

The e-tolling saga suggests that in our government the left hand truly does not know what the right hand is doing. While ANC leaders were reaching an agreement with Cosatu to postpone the implementation of e-tolling, the Treasury was issuing dire warnings of the cost implications of such a move. But because the real power in our country seem to lie at Luthuli House and because decisions there are often taken on the basis of whether this would enhance the re-election chances of Jacob Zuma and Gwede Mantashe at Mangaung, the government was forced to go along with a decision which might well have dire consequences for our economy.

I believe the journalistic cliche is that it revealed our government as being in shambles.

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