FF Plus, TAU SA and the National Taxpayer's Association to apply to court to have the E-Toll Act declared unconstitutional

The Freedom Front Plus, the Transvaal Agricultural Union of South Africa (TAU-SA) and the National Taxpayer's Association (NTA) will be launching a court case in the North Gauteng High Court to have the Transport Laws and Related Matters Act (also known as the E-Toll Act) declared unconstitutional. The application will at the latest be submitted to the court on Friday.

The FF Plus and the other organisations will contest the constitutionality of the E-Toll Act, amongst others on the following grounds:

The most important basis of unconstitutionality is that the E-Toll Act was classified incorrectly in the Parliamentary process as a Section 75 Act which will not affect provinces, in terms of the Constitution. We contend that the E-Toll Act should actually have been tagged as a Section 76 Act which does affect provinces.

The e-toll system affects provincial powers in particular, as set out in Section 76(3) and Schedule 4 of the Constitution and more specifically provincial matters such as public transport (the purpose of the e-toll system is aimed precisely at making use of public transport), city planning and development (the e-toll system has an influence on it as transport patterns will be changing), road traffic regulation (the e-toll system will be changing transport patterns as motorists start making use of alternative suburban routes), and vehicle licensing (the withholding thereof which will possibly be used by SANRAL to enforce the payment of fines).

The Constitutional Court had ordered in Tongoane and Others v Minister of Agriculture and Land Affairs 2010 that a Bill can be classified as a Section 76 Bill when, not only the essence of the act deals with a provincial matter, but also when the effect of an Act will be of such a nature that it would have an effect on provincial matters. In the Tongoane case it was also ruled that an Act which was classified incorrectly is invalid from the outset and has to be sent back to Parliament.

The Constitutional Court also explained that the classifying of laws is not merely a technical parliamentary requirement, but that it addresses the essence of democracy. The constitution was signed to give provinces and their residents the opportunity to have a say in national laws if these laws would affect them. If that right is denied them through the incorrect classification and parliamentary process, the democracy of the country would be undermined.

This was confirmed by the legal opinion which the president received about the Intellectual Property Amendment Bill. It is therefore clear that the E-Toll Amendment Bill will definitely have an effect on provincial matters and capabilities.

In the second instance, it is argued that the levying of a toll actually entails the collection of taxes, as set out in Section 77. That is why the part which deals with the levying of tolls and toll tariffs in both the E-Toll Amendment Bill and the founding SANRAL Act should actually be contained in a separate Money Bill, which has to be submitted by the Minister of Finance as a separate Bill. Section 77 stipulates that only the Minister of Finance can submit Money Bills.

The FF Plus, the TAU and the NTA will launch the court application as a separate association. The initial name will be known as the Toll Gate Action Group (AG). Various lawyers, apart from the association's own legal team, have indicated that the application has a very good chance of success. If the application is successful, the implementation of the E-Toll system will most probably be postponed to the end of 2014/ beginning of 2015 due to the election next year and the fact that a new parliament will have to be constituted.

A further explanation for possible success is the information that the president's own legal team had provided him with legal advice that the E-Toll Act was classified incorrectly. The presidency had acknowledged to the FF Plus telephonically that the president's legal advisors agreed with the legal advice of Adv. Anton Alberts of the FF Plus. The FF Plus formally applied to view the president's the legal opinion which he had received, but this was refused, which further strengthens the suspicion that the president had signed the E-Toll Act against the advice of his own legal advisors.

This court application is the culmination of the long process in which the FF Plus had, first in the parliamentary portfolio committee on Transport and later with the president himself, made representations in which it stated that the E-Toll Act (at that point still an Amendment Bill) is unconstitutional.

Statement issued by Adv. Anton Alberts, FF Plus parliamentary spokesperson: Transport, November 7 2013

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