South African National Roads Agency Limited v City of Cape Town (66/2016) [2016] ZASCA 122; [2016] 4 All SA 332 (SCA); 2017 (1) SA 468 (SCA) (22 September 2016)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2016
>>
[2016] ZASCA 122
|

|

South African National Roads Agency Limited v City of Cape Town (66/2016) [2016] ZASCA 122; [2016] 4 All SA 332 (SCA); 2017 (1) SA 468 (SCA) (22 September 2016)

Links to summary

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 66/2016
In
the matter between:
SOUTH
AFRICAN NATIONAL ROADS AGENCY
LIMITED

APPELLANT
and
CITY
OF CAPE
TOWN

RESPONDENT
Neutral Citation:
SANRAL v City of Cape Town
(66/2016)
[2016] ZASCA 122
(22
September 2016)
Coram:
Navsa, Cachalia, Wallis, Petse & Mocumie JJA
Heard:
16 August 2016
Delivered:
22 September 2016
Summary:
The South African National Roads Agency Limited and National
Roads Act 7 of 1998
: Declaration of national road as toll road in
terms of
s 27
of the Act : Application to review and set aside
a) an application by South African National Roads Agency Limited
(SANRAL) to Minister
of Transport (Minister) for approval of
declaration of toll road; and b) decision by the Minister to approve
declaration as toll
road : delay in bringing review : delay
unreasonable but interests of justice nevertheless requiring that
condonation be granted
: SANRAL’s board had not in fact taken
decision to seek Minister’s approval : later attempt to rectify
omission invalid
: Minister misconstruing function in approving
declaration : approval set aside : cross-appeal : claim for interdict
in relation
to possible future contract : application premature.
ORDER
On
appeal from
: Western Cape Division of the High Court, Cape Town
(Binns-Ward and Boqwana JJ sitting as court of first instance),
reported
sub nom
as
Cape Town City v South African National
Roads Agency Ltd & others
2015 (6) SA 535
(WCC).
1.
The application for leave to appeal against the refusal to admit
further affidavits is dismissed with costs, including the costs
of
two counsel.
2.
The appeal is dismissed with costs, including the costs of two
counsel.
3.
The cross-appeal is upheld with costs, including the costs of two
counsel, to the following limited extent:
3.1
Paragraph f) of the order of the court below is amended to read as
follows:
‘
f)
No order is made in respect of the relief sought by the applicant in
terms of
paragraphs 3 and 4 of the notice of motion.’
3.2
The order of the court below is supplemented with the following:
‘
j)
The round robin resolution by the first respondent’s board to
declare as
toll roads portions of the N1 (R300 interchange to
Sandhills) and the N2 (R300 interchange to Botriver) and the
subsequent ratification
thereof at the first respondent’s board
meeting of 3 June 2014 as more fully reflected in annexure NA1 to the
affidavit of
Nazir Alli (“the 2014 declaration decision”)
is declared to be invalid and of no force and effect.
k)
The 2014 declaration decision is reviewed and set aside.’
JUDGMENT
Navsa
JA (Cachalia, Wallis, Petse & Mocumie JJA concurring)
Introduction
[1]
The tolling of national roads has become a burning issue in public
and political debate
and has received judicial attention at the
highest level. This case concerns the correctness of a decision of
the Western Cape
Division of the High Court, Cape Town (Binns-Ward
and Boqwana JJ), to review and set aside a purported decision by the
appellant,
to propose that portions of two national roads be declared
toll roads, and the subsequent decision of the Minister of Transport

(the Transport Minister) to approve that proposal. The appellant is
the South African National Roads Agency Ltd (SANRAL), a statutorily

established entity.
[1]
The
review application, said to be in terms of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA), had been brought by
the
respondent, the City of Cape Town (the City), a metropolitan
municipality established in terms of the
Local Government: Municipal
Structures Act 117 of 1998
. The national roads in question are the N1
and N2 leading into and forming part of Cape Town, referred to as the
N1-N2 Winelands
Toll Highway Project (the Project). It is uncontested
that these national highways, which form part of the national roads
system,
are of importance to the City, the Province and the country.
[2]
The court below, in dealing with the review application that was
brought four years
after the impugned decisions had been made,
resorted to
s 9
of PAJA, and extended the period of 180 days within
which a review, in terms of that Act, is required to be brought.
[2]
Pursuant to the setting aside of the abovementioned decisions, the
court remitted SANRAL’s proposal to the Transport Minister
for
further consideration:
‘
in
accordance with the findings in the judgment, subject to the
direction that, should it be decided to proceed with the Project,
the
process in terms of s 27(4) of the SANRAL Act must be undertaken
afresh,
ab initio
, in proper compliance with the prescripts of
the provisions and the requirements of just administrative action’.
[3]
SANRAL was ordered to pay 70 per cent of the City’s costs,
including the costs
of three counsel. The court below ordered SANRAL
to pay, in full, the costs incurred by the City in respect of the
qualifying fees
of specified expert witnesses. For present purposes,
it is not necessary to consider the other incidental costs orders.
[4]
With the leave of the court below, SANRAL appeals against the
following: (a) the decision
to grant the City an extension of the 180
day time period, prescribed by s 7 of PAJA, (b) the decision on the
merits of the review
application; (c) the refusal to admit further
supplementary affidavits; and (d) the costs order, on the ground that
the parties
are all state entities and that in those circumstances a
costs order should not have been made.
[5]
The City, on the other hand, with the leave of the court below,
cross-appeals against
the refusal by that court to make any order in
respect of the validity of a round-robin resolution, adopted in 2014
by the board
of SANRAL, as well as against its refusal of an
interdict sought by it, to preclude SANRAL from entering into an
agreement, the
envisaged particulars of which will be dealt with in
due course. There is also a conditional cross-appeal by the City
against the
court a quo’s refusal to admit further affidavits
by members of SANRAL’s board, both in respect of a purported
earlier
decision and in relation to the 2014 resolution, the
application for leave to appeal in relation thereto having been
referred for
oral argument by this court.
[6]
The present Transport Minister, unlike her predecessor, who opposed
the City’s
application in the court below, does not oppose the
appeal. The detailed background to the appeal is set out later. The
court below
found that the Transport Minister had failed to follow
statutory prescripts. Taking that into account, and considering that
in
terms of the Act SANRAL is statutorily enjoined to interact with
the Transport Minister, to follow government policy in relation
to
national roads,
[3]
and compelled
to report annually to the Transport Minister about its business
operations, projects, finances, transactions and
activities, we are
perplexed by the apparent failure by SANRAL and the Transport
Minister to make common cause, one way or the
other.
[7]
It is necessary to state, right at the outset, that this case is not
about the power
of the legislative and executive arms of government
to formulate policy, fund state projects and allocate state
resources. It is
eminently within their power and prerogative to
formulate and implement policy on how to embark on, and finance,
public projects.
It is no different when decisions are to be made
concerning how national roads ought to be constructed and financed.
Such issues
inevitably call for policy-laden and polycentric
decision-making. The Constitutional Court, in
National
Treasury & others v Opposition to Urban Tolling Alliance &
others
[2012] ZACC 18
;
2012 (6) SA 223
(CC) (
OUTA
),
in dealing with the legality of the tolling of national roads,
reiterated the importance of courts recognising the rightful and

exclusive terrain of the executive or legislative branches of
government.
[4]
The
Constitutional Court has repeatedly reminded us that the doctrine of
the separation of powers must be honoured.
[8]
However, in
OUTA
,
the Constitutional Court was equally clear that an organ of state is
not necessarily immunised from judicial review on account
of that
doctrine. It repeated what we now accept as elementary, namely, that
the exercise of all public power is subject to constitutional

control.
[5]
The principle of
legality is therefore at the heart of this appeal. The central
question in this case is whether SANRAL and the
Transport Minister,
in arriving at the decisions referred to at the beginning of this
judgment, complied with statutory prescripts.
Because of a
considerable lapse of time between the relevant decisions being made
and the application for review being brought,
the question arises
whether the delay ought to be judicially condoned. That question, as
will be demonstrated, is inextricably
connected to the nature and
consequence of the decision as well as with the degree, if any, of
non-compliance with statutory prescripts.
[9]
Before turning to the interpretation and application of the pertinent
statutory provisions
and considering whether the delay in the
launching of the review application was rightly condoned, it is
necessary to set out in
some detail the background culminating in the
present appeal. The background that follows includes relevant
timelines, commencing
with the conceptualisation of the Project and
all the processes leading up to the launching of the review
application in the court
below as well as the reasoning, conclusions
and orders of that court.
The unsolicited bid
[10]
More than 18 years ago, during March 1998, a consortium comprising
Basil Read (SA), Concor (SA),
Group Five (SA) and Bouygues Travaux
Publics SA (France) (the Consortium)
[6]
submitted an unsolicited bid to SANRAL ‘to develop a proposal
to upgrade, construct, maintain, operate and toll sections
of the N1
and N2 national routes in the Western Cape’.
[11]
SANRAL, in dealing with the unsolicited bid, followed its own policy
directives. The process
for the submission of the bid leading up to
the consortium being awarded ‘scheme developer’ status in
April 2000, took
slightly more than two years.
The
environmental authorisation process – a brief overview
[12]
On 3 May 2000, at a time when the Environment Conservation Act 73 of
1989 (ECA), regulated listed
activities, including the building of
highways, SANRAL and the Consortium applied to the Department of
Environmental Affairs and
Tourism (DEAT) for environmental
authorisation for the Project.
[7]
Section 22(2) of the ECA states that such authorisation shall only be
issued after consideration of reports concerning the impact
of the
proposed activity. The initial scheme development phase commenced as
a partnership between SANRAL and the Consortium. The
Consortium later
withdrew and SANRAL remained as the sole applicant for
authorisation.
[8]
[13]
SANRAL procured an environmental impact study and during May and
August 2000 there was interaction
with the public, followed by
comments from interested parties. The City voiced concerns about the
impact of the Project on the
metropolitan, spatial, transportation,
environmental, economic and social development aspects, especially as
it considered the
absence of a framework for envisaged toll charges
to be problematic.
[14]
During the environmental impact assessment (EIA) process only the
biophysical impacts of the
Project were considered and the fee
structures and socio-economic aspects flowing from tolling were left
to be dealt with by the
Transport Minister in a subsequent phase,
dealt with later in this judgment. The DEAT and the then Minister of
Environmental Affairs
and Tourism, the predecessor of the Minister of
Water and Environmental Affairs, the third respondent in the court
below, took
the view that there were no toll tariffs available on
which to base the assessment of economic impacts and that they were
assessed
on a range of possible tariffs from a low to a high toll
with a preferred toll being assumed to be intermediate. The DEAT
apparently
accepted that because of SANRAL’s tender
requirements, specific recommendations regarding frequent user
discounts could not
be provided as part of the EIA study. The City
adopted the attitude then, as it did later in the court below, that a
number of
poor communities would be captive to the Project and would
have no alternative but to use the toll road. On 21 October 2002 the

City sent a letter to the DEAT stating that it believed that the
failure to consider the socio-economic impacts of tolling was
a fatal
flaw in the EIA process.
[15]
The final Environmental Impact Assessment Report (EIAR) was submitted
to the DEAT for approval
on 22 December 2002. On 30 September 2003
environmental authorisation for the construction and upgrading of the
highways was granted.
The authorisation was valid for a period of two
years. On 30 October 2003 the City Manager lodged an appeal to the
Environment
Minister against that decision. Almost two years later,
on 20 October 2005, the Environment Minister dismissed the City’s

appeal.
[16]
In summary, the City’s primary objections to the environmental
authorisation process were
set out in the following two paragraphs of
its founding affidavit in the court below:
‘
The approach
adopted by both the DDG and the Environmental Minister resulted in
the decisions taken by them, and the conditions
of approval,
overlooking the impact of the activities which they authorised on
poor and disadvantaged communities. The City’s
submissions
should have been taken into account by the decision-makers as part of
the EIA process. They clearly were not.
It
is also apparent that the decision-makers were brought under the
erroneous impression that the Project would not divert large
volumes
of traffic to the surrounding provincial and City road networks, and
that the impact on City roads would be insignificant.
In this regard
I refer to the report of John Spotten which shows this to be wrong. A
copy of his report is attached to his affidavit
filed herewith.’
The
intent to toll process
[9]
[17]
More than eight years ago, on 25 March 2008,
[10]
following on the environmental authorisation, SANRAL informed the
City of its intention to toll the highways. The City was provided

with an opportunity to comment within 60 days. On 28 March 2008,
SANRAL published a notice of intent in the
Government
Gazette
in relation to the Project.
[11]
[18]
During May 2008 the Western Cape Provincial Transport Minister
[12]
objected to the proposed declaration of the toll roads, as did the
Cape Winelands District Municipality. The latter’s objection

was based on its view that local economic growth would be negatively
affected and that alternative routes already congested would
become
even more over-utilised by diverted traffic.
[19]
During May and June 2008 there was an exchange of correspondence
between the City and SANRAL.
The City indicated that it was against
the imposition of tolls and that in its view the most efficient means
of collecting user
charges would be in the form of a fuel levy or a
‘shadow toll’. The City suggested that within Cape Town,
route-specific
tolling should be used. SANRAL’s response was
that the City ought to have invited it to discuss the role of toll
roads as
an instrument for the delivery of road infrastructure, more
particularly, in relation to the roads under discussion. It took the

view that this would have led to a better understanding on the part
of the City of the need for and importance of toll roads.
[20]
On 2 September 2008 SANRAL submitted a report on the Project to the
Transport Minister and provided
comments and recommendations. On the
same day, the Transport Minister approved SANRAL’s proposal
that the highways be declared
toll roads.
[21]
On 15 September 2008 SANRAL published in the
Government
Gazette
a declaration of the highways as toll roads.
[13]
The notice reads as follows:
‘
SOUTH AFRICAN
NATIONAL ROADS AGENCY LIMITED
DECLARATION
OF N1-N2 WINELANDS TOLL HIGHWAY: NATIONAL ROAD N1, BELLVILLE (R300
INTERCHANGE) TO SANDHILLS AND NATIONAL ROAD N2, SWARTKLIP
(R300
INTERCHANGE) TO BOT RIVER AS TOLL ROADS
In
terms of Section 27(1)(a)(i) of the South African National Roads
Agency Limited and National Roads Act (Act No. 7 of 1998), the
Agency
hereby declares:
(a)
Portions of existing National Road N1: Section 1 and Section 3 as
well
as the whole of Section 2 of the national road known as National
Road 1 Section 1, Section 2 and Section 3, from the Old Oak
Interchange
(Section 1, km 18.69) up to a point 810 meters to the
east of the Sandhills intersection (Section 3, km 20.54), as declared
as
a National Road in terms of Government Notice 319 of 25 March 2008
excluding the Huguenot Toll Road that is already declared a Toll
Road
under Government Notice 2877 of 31 December 1987; and
(b)
Portions of existing National Road N2 . . . as Toll Roads.’
Events
subsequent to the intent to toll process
[22]
No further concrete steps were taken by SANRAL in respect of the
Project until 16 March 2010,
when it issued an invitation for a
tender for the construction and operation of the toll roads. It is
common cause that SANRAL
received tenders from three bidders.
[23]
On 19 April 2011, the City wrote to SANRAL, reiterating its
aforementioned stance and its opposition
to the tolling of the roads.
It urged SANRAL to engage with it ‘in order to find a mutually
beneficial resolution’.
[24]
On 21 April 2011, SANRAL selected two of the bidders to proceed to a
‘Best and Final Offer’
stage, at which they were called
upon to present their final offer for consideration. SANRAL indicated
that the preferred bidder
would be selected and that it would
negotiate and finalise an agreement with that bidder. During May and
July 2011, the impasse
between the City and SANRAL continued despite
an exchange of correspondence. The respective attitudes became even
further entrenched.
[25]
It is common cause that in a letter dated 18 July 2011, the City
declared a formal intergovernmental
dispute with SANRAL in terms of s
41(1) of the Intergovernmental Relations Framework Act 13 of 2005
(IRFA).
[26]
During September 2011, SANRAL appointed the Consortium as the
preferred bidder. Negotiations
of the terms and conditions of the
concession contract between SANRAL and the preferred bidder, as well
as a ‘debt funding
competition’ to determine the pricing
of a loan, were still to take place. During 2011 there were reports
in the media that
the Minister of Transport had placed a moratorium
on all further road project processes relating to the tolling of
national roads,
including the Project.
[27]
The IRFA process did not result in a resolution of the dispute. On 16
March 2012, the Facilitator
of that process submitted his report in
which he stated that the IRFA process had come to an end.
[28]
At the end of March 2012, the City launched an application to review
the decisions set out above
and sought an order in the following
terms:
‘
1.
The following decision are reviewed and set aside –
1.1
The decision of the Acting Deputy Director-General: Environmental
Quality and
Protection of the then Department of Environmental
Affairs and Tourism in terms of section 22 of the Environment
Conservation Act
73 of 1989 (“the ECA”) on 30 September
2003 (“the 2003 environmental authorisation”) to grant an
environmental
authorisation for the N1-N2 Winelands Toll Highway
Project (“the Project”);
1.2
The decision of the [Environment Minister] in terms of section 35 of
the ECA
on 10 October 2005 to dismiss the appeals against the grant
of the environmental authorisation and to grant environmental
authorisation
for the roads and associated infrastructure to be
constructed as described in the 2003 environmental authorisation;
1.3
The decision of the [Environment Minister] in terms of section 22(3)
of the
ECA on 28 February 2008 to grant an environmental
authorisation for the Project read together with the revised
environmental authorisation
and record of decision dated 7 April 2008
issued under cover of a letter dated 9 April 2008;
1.4
The decision of the second respondent (“the Transport
Minister”)
in terms of section 27 of the South African National
Roads Agency Limited and National Roads Act 7 of 1998 (“the
SANRAL Act”)
on 2 September 2008 to approve the declaration of
specified portions of the N1 N2 Winelands Highways (“the
Highways”)
as toll roads for purposes of the SANRAL Act;
1.5
The purported decision of the chief executive officer of [SANRAL],
alternatively
[SANRAL], to declare the Highways as toll roads in
terms of section 27 of the SANRAL Act, together with the publication
of the
purported declaration in Government Notice 978,
Government
Gazette
31422, 15 September 2008 (“the Declaration”).’
It
is not necessary to deal with the alternative relief sought by the
City.
[29]
In its answering affidavit in the court below, SANRAL estimated that
the cost of implementing
the Project, since the appointment of a
scheme developer in 2000, excluding the construction work, has been
approximately R136
million. The sentence preceding the estimate reads
as follows:
‘
The lengthy and
extensive process of obtaining the necessary authorisations, the
consultations which took place, the appeal procedure
and ultimately
the call for tenders, their submission and evaluation all come to
considerable cost, not only to SANRAL and the
decision makers
concerned but also to the tenderers.’
[30]
For completeness it is necessary to record that the City, in
launching its application, cited
ten respondents, which included in
addition to those already mentioned, the Minister of Transport and
Public Works, Western Cape
Province; the Minister of Finance,
Economic Development and Tourism, Western Cape Province; two
Consortia; a ‘Crisis Committee’
and two affected
municipalities. The contestation in the court below was limited to
the City on the one side, and SANRAL and the
Transport Minister on
the other.
The
court below
[31]
In dealing with the challenges brought by the City against the
environmental authorisation granted
following SANRAL’s proposal
to toll, as well as the Transport Minister’s approval thereof,
the court below took the
view that it was dealing with administrative
action that fell squarely within the ambit of PAJA.
[14]
It dealt with the decisions in relation to the environmental
authorisation and the intent to toll process compartmentally. In
relation to the environmental authorisation, Binns-Ward and Boqwana
JJ took into account that the then Environmental Minister, Mr

Marthinus van Schalkwyk, had announced his decision in respect of the
appeals brought by the City during October 2005. The judges
noted
that the Environment Minister had proceeded on the premise that
tolling and the structuring of toll fees were matters that
were
beyond his remit and that the socio-economic impact of the Project
had to be considered during the intent to toll process.
[15]
[32]
Binns-Ward and Boqwana JJ held that where an intended activity or
development of a nature that
might significantly affect the
environment involves authorisation from more than one government
authority, the principles of integrated
environmental management
provided for by NEMA should have applied and that would necessarily
have meant the involvement of SANRAL,
the City and the Transport
Minister, on that aspect in the intent to toll process.
[16]
The court took the view that the potential socio-economic impact of
tolling could be dealt with during that phase, and that the
failure
to deal with it in the EIA process was not a fatal flaw.
[17]
This led it to conclude that the application for the review of the
environmental authorisation could not succeed.
[33]
However, taking extra care, the court went on to state that even if
it was wrong in that conclusion,
the inordinate delay in applying for
a review of the environmental authorisation weighed against holding
that it was in the interest
of justice to extend the 180 day period
provided for in PAJA, and for that reason too the review application
had to fail. In reaching
that conclusion, it was persuaded by the
factors set out hereafter.
[18]
Section 36 of the ECA required promptitude. In terms thereof an
aggrieved person is entitled to approach the high court with an

application for a review of a decision within 30 days of being
furnished with the reasons therefor. The City had failed to resort
to
the provisions of the IRFA to resolve the dispute between it and the
environmental authority. Even though there was a lengthy
period of
three years between the date of the record of decision in relation to
the environmental authorisation and the final determination
of the
appeal, followed by a further period of over two years before a
revised record of decision was issued, there was, nevertheless,
a
further inordinate delay from 2008 onwards until the review
application was launched in March 2012. The court below held that
one
could deduce from the history of the matter that the City had
acquiesced in the idea that socio-economic impacts would be
considered in the subsequent intent to toll process. It did not think
it necessary to resolve the dispute as to whether the environmental

authorisations, which are time bound, were still effective.
[19]
For the reasons set out above the relief sought by the City in paras
1.1 – 1.3 of its Notice of Motion was refused.
[34]
The court did not consider that its reasoning and conclusions,
referred to in the preceding paragraphs,
precluded it from
considering the legality of the relevant parts of the intent to toll
process. The question of delay in relation
to the City’s
challenge on that aspect would, of course, have to be brought into
consideration, but it left the question
of whether the delay ought to
be condoned for last, preferring to deal first, with the merits of
the City’s challenge to
the intent to toll process. Turning to
the legality of the impugned decisions in relation to the intent to
toll process, the court
below had regard to s 27 of the Act,
[20]
in terms of which the decisions were purportedly made. The relevant
parts of these provisions are either reproduced, or summarised

hereunder. Section 27(1)
(a)
provides:
‘
Levying
of toll by Agency’
(1)
Subject to the provisions of this section, the Agency –
(a
)
with the Minister’s approval –
(i)
may declare any specified national road or any specified portion

thereof, including any bridge or tunnel on a national road, to be a
toll road for the purposes of this Act; and
(ii)
may amend or withdraw any declaration so made.’
[35]
Section 27(1)
(b)
provides that the amount to be collected as a
toll has to be determined and made known in terms of s 27(3) of the
Act. Section 27(1)
(c)
makes provision for the grant of
exemptions from the payment of a toll on a particular road in respect
of categories of vehicles
determined by SANRAL and specified in a
notice in terms of s 27(2). It also provides for exemptions to a
category of users of the
road, irrespective of the class of vehicle
driven or used. There are other provisions dealing with restrictions
and suspensions
of tolls which, for present purposes, it is not
necessary to consider.
[36]
Section 27(3) states that the amount of the toll that may be levied
under the preceding subsection,
any rebate thereon and any increase
or reduction thereof is determined by the Transport Minister, on the
recommendation of SANRAL
and may differ in respect of different
roads, vehicles or categories of vehicles or in relation to time
periods and categories
of road users. The Transport Minister on the
recommendation of SANRAL also determines the means of payment, and
the date from which
the toll is payable. It is further specially
provided that the amount of toll has to be made known by the head of
the Department
of Transport by notice in the
Gazette
.
[37]
Section 27(4) is of importance and sequentially applies before the
approval process in s 27(1)
can be triggered. Its provisions read as
follows:
‘
(4)
The Minister will not give approval for the declaration of a toll
road under subsection 1
(a)
, unless –
(a)
the Agency, in the prescribed manner, has given notice,
generally, of the proposed declaration, and in the notice –
(i)
has given an indication of the approximate position of the
toll plaza
contemplated for the proposed toll road;
(ii)
has invited interested persons to comment and make representations on

the proposed declaration and the position of the toll plaza, and has
directed them to furnish their written comments and representations

to the Agency not later than the date mentioned in the notice.
However, a period of at least 30 days must be allowed for that
purpose;
(b)
the Agency in writing –
(i)
has requested the Premier in whose province the road proposed
as a
toll road is situated, to comment on the proposed declaration and any
other matter with regard to the toll road (and particularly,
as to
the position of the toll plaza) within a specified period (which may
not be shorter than 60 days); and
(ii)
has given every municipality in whose area of jurisdiction that road
is situated the same opportunity to so comment;
(c)
the Agency, in applying for the Minister’s approval for the
declaration, has forwarded its proposals in that regard to the

Minister together with a report on the comments and representations
that have been received (if any). In that report the Agency
must
indicate the extent to which any of the matters raised in those
comments and representations have been accommodated in those

proposals; and
(d)
the Minister is satisfied that the Agency has considered those
comments and representations.
Where
the Agency has failed to comply with paragraph
(a)
,
(b)
or
(c)
, or if the Minister is not satisfied as required by
paragraph
(d)
, the Minister must refer the Agency’s
application and proposals back to it and order its proper compliance
with the relevant
paragraph or (as the case may be) its proper
consideration of the comments and representations, before the
application and the
Agency’s proposals will be considered for
approval.’
[38]
Section 39 of the Act, entitled ‘National Roads Policy’
was also considered by the
court below.
[21]
Section 39(1) provides that the Government’s policy with regard
to national roads must be made known by the Transport Minister
by
notice in the
Gazette
,
setting out the goals that the Government wanted to achieve and the
policy objectives to be followed to attain those goals.
Significantly,
s 39(2) provides that whenever any proposals relevant
to determining or amending that policy are to be considered and
decided by
Government, the Minister by notice in the
Gazette
,
must make known those proposals and, in that notice, invite any
interested persons and the public to comment and make representations

in regard thereto. Section 39(3) states that SANRAL ‘must
determine its business and financial plan and strategic plan and
the
standards and criteria for road design and construction and for road
safety within the framework of the national roads policy
as
determined by Government’.
[39]
Despite the passage of almost two decades since the Act came into
operation, the Transport Minister
had not published Government’s
policy in relation to national roads.
[22]
SANRAL and the Minister relied on the 1996
White
Paper on National Transport Policy
and the Department of Transport’s
National
Land Transport Strategic Framework
,
[23]
published in terms of
s 29(1)
of the
National Land Transport
Transition Act 22 of 2000
, as documents on which national roads
policy was based. The import is that a national road network may
include toll roads where
they are financially and socially viable and
where tolls can contribute significantly to funding the roads.
[40]
A memorandum was submitted to the SANRAL board in 2004 by its Chief
Executive Officer in order
to inform it of particular issues and
concerns regarding the Project.
[24]
That memorandum estimated the value of the initial construction works
to be in the order of R1,9 billion, which excluded the work
to be
done in respect of commissioning the second bore of the Huguenot
Tunnel.
[25]
The memorandum to
the Board included a reference to the City of Cape Town’s
opposition to tolling and its preference for
alternative funding
mechanisms. The memorandum contained a recommendation that the
Project should proceed with the completion of
tender documents and
the acquisition of the necessary land. The memorandum ended with the
following sentence:
‘
Further
reports will be submitted regarding the projects and the Intent to
Toll process as and when required.’
However,
there was no evidence of any further written reports on the Project
being submitted to the Board between 2004 and the date
of the
declaration of the roads as toll roads in 2008.
[26]
The minutes of the Board meeting held on 20 January 2004, reflect
that the Board, having had sight of the memorandum by the Chief

Executive Officer, merely noted the ‘contents of [the] report
and advices on the way forward’.
[41]
The court below was alive to the fact that no documentation had been
produced by SANRAL or the
Transport Minister to show that the Board
had formally considered and settled on a proposal to be submitted to
the Transport Minister
for approval in terms of s 27(1)
(a)
(i)
of the Act.
[27]
[42]
Binns-Ward and Boqwana JJ observed that the period between 2004 and
2005, insofar as the intent
to toll process was concerned, overlapped
with the ECA processes referred to earlier.
[28]
There were extensive and protracted exchanges between the City and
SANRAL, with each asserting their entrenched positions in relation
to
the Project. There was a dispute about whether SANRAL had indeed
produced a report concerning socio-economic impact and whether
that
report was more limited than SANRAL suggested. In 2008 already the
City had threatened to launch a legal challenge against
the
environmental decisions and, in the event that SANRAL persisted,
against the decision to have the roads in question declared
toll
roads. The court below also took note of the fact that the
application to the Transport Minister, in terms of s 27 of the
Act,
comprised 1560 pages of documentation, including a 63 page report by
SANRAL together with copies of comments and objections
by interested
parties.
[29]
The court below
observed that the Transport Minister ‘signified his unqualified
approval of SANRAL’s proposal to declare
the roads as toll
roads on the same day that he received the application and voluminous
supporting documents’.
[30]
This approval occurred without the assistance of a departmental
memorandum. However, Binns-Ward and Boqwana JJ recorded the
acceptance
by the City that it could not go behind the Transport
Minister’s averments under oath that he had been familiar with
the
Project by reason of his history of previous interaction with
SANRAL on the subject and that he had therefore been able to get
through the papers in such a short time.
[31]
[43]
Despite the voluminous documentation and the extensive allegations
and counter-assertions, the
court below took the view that the City’s
challenge to the Transport Minister’s approval of SANRAL’s
proposal
to toll the roads in question, fell within a narrow compass.
Binns-Ward and Boqwana JJ stated the following (para 135):
‘
For the purpose of
deciding whether there is merit in the City’s challenge to the
Minister’s decision it is necessary
only to consider the
question whether the Minister misconceived his powers and functions
in terms of s 27(1) read with s 27(4).’
[44]
The court considered the material parts of the answering affidavit on
behalf of the Transport
Minister, from which it was clear that he
took the view that the declaration of roads as toll roads was
primarily the responsibility
of SANRAL.
[32]
It was postulated on behalf of the Transport Minister that he only
had an oversight role. The general suggestion in the answering

affidavit appeared to be that the Transport Minister merely had to
have regard to whether the provisions of ss 27(4)
(a)
–
(d)
had been complied with and, if he concludes that there had been
compliance with these requirements, he could then, without more,
move
on to declare the roads toll roads. Apart from ensuring compliance
with those requirements it was said that the Minister was
not
entitled to exercise any independent judgment on whether the proposal
was desirable. That was a decision that was for SANRAL
to make.
[45]
In oral argument before the court below, counsel on behalf of the
Transport Minister, even though
accepting that the Transport Minister
was not obliged to approve SANRAL’s recommendation merely
because the requirements
of s 27(4)
(a)
–
(d)
had been met, nevertheless submitted that in terms of s 27(1) his
role was restricted to that of assessing the proposal to see
if it
was in conformity with government policy.
[33]
[46]
Binns-Ward and Boqwana JJ rejected the submission that s 27(4) was a
provision in terms of which
the Transport Minister merely had an
oversight role. They said the following (paras 139 – 140):
‘
139.
If the legislative object of s 27(1) read with s 27(4) of the SANRAL
Act had been merely to give the Minister the responsibility
of
procedural oversight, one would have expected the provisions to have
been worded differently. Moreover, having regard to the
scheme of the
Act as a whole, and in particular its requirement, in a number of
material respects, that SANRAL may act only with
the Minister’s
acquiescence or approval, it would be anomalous were the Minister’s
powers and function with regard
to the declaration of toll roads as
limited as the respondents’ contention would have them.
140.
The facts of this case and, indeed, also those documented in the
judgments in the OUTA litigation concerning the urban toll
roads in
Gauteng, illustrate that the construction and upgrading of national
roads for use as toll roads can have significant fiscal
implications,
even, it would seem, when large multi-billion rand projects are
involved, to the extent of potential impact on the
country’s
credit rating. Furthermore, certain of the City’s concerns in
the current matter about the potential effect
of tolling on the road
system for which it is responsible – which echo those which
moved the Johannesburg City Council to
litigate in the
South
African Roads Board
case supra – illustrate that the
declaration of roads as toll roads can also have adverse effects on
the constitutional ideal
of a relationship of comity between the
national government and the other two spheres of government. That
tolling urban roads can
have political, as well as social and
economic, implications is also manifest. It is thus unsurprising to
find provision made in
the SANRAL Act for the responsible member of
the Cabinet to maintain a measure of direct control over tolling, at
least to the
extent of having the final say over any proposals by
SANRAL in that regard. These are objective considerations that,
irrespective
of the effect of the contextual indicators in the other
provisions of the statute – to which we shall refer presently –

make the respondents’ construction of the Minister’s
powers and functions in terms of s 27 unpersuasive. It is unlikely

that Parliament would have restricted the role it unambiguously
decided to give the Minister to consider approving such proposals
to
the limited administrative, indeed almost clerical, function for
which the respondents (albeit in the case of the [Environment

Minister], somewhat equivocally) contended.’
[47]
In arriving at those conclusions, the court below considered itself
bolstered by what it described
as a ‘contextual’
assessment of the nature of the Transport Minister’s authority
over SANRAL, within the framework
of the Act.
[34]
It is the Transport Minister in whom the State’s rights as the
only member and shareholder in SANRAL are invested. The following

part of paragraph 142 of the judgment is relevant:
‘
As
mentioned, SANRAL is required to fulfil its functions within the
framework of government policy and in accordance with its business

and financial plan. The Minister is responsible for making Government
policy known and is the functionary responsible for receiving
any
representations on the determination or amendment of such policy.
SANRAL’s business and financial plans, as well as its
strategic
plans, require approval by the Minister annually. The Agency is only
able to use its funds in accordance with a business
and financial
plan approved by the Minister, and it may only raise loans from the
State through the Minister, or from any other
source with the written
permission of the Minister. The Minister, on the recommendation of
the Agency, determines the amount of
toll that SANRAL or a
concessionaire may levy and collect for the driving or use of a
vehicle on the toll road. This is not an
exhaustive analysis of the
Minister’s role under the Act, but it is sufficient to
illustrate the extent to which, for reasons
which to us appear
obvious, the scheme of the statute provides for a significant measure
of operational supervision and control
of the Agency by the Minister.
The requirement which the language of s 27(1) read with s 27(4)
appears to impose that SANRAL may
declare a road as a toll road only
after the Minister’s approval obtained after a substantive
consideration of the proposal
is wholly conformable with the scheme
of the Act.’ (Footnotes omitted.)
[48]
As to the factors that the Transport Minister might have regard to in
arriving at a decision
whether to approve the proposal by SANRAL, the
judgment continues (para 144):
‘
The
Act is not prescriptive of the considerations to which the Minister
will have regard in considering the merits of the proposal.
In the
context of the other provisions to which we have referred it might be
expected, however, that the Minister would, amongst
other matters,
consider (i) how the proposal fitted within the framework of
government policy, which, by reason of its current
formulation, would
include assessing whether the proposed tolling was socially and
financially viable and (ii) the conformity of
the proposal to the
Agency’s approved business and financial plan, including the
indications the statute requires to be given
therein concerning the
cost of the project, the manner in which it is proposed to finance it
and the planned performance indicators
applicable to it. ( . . . A
socio-economic assessment is necessary to provide the information
that SANRAL and the Minister would
need to be able to conscientiously
assess how the proposals conformed to government policy that tolling
be used to fund roads when
it is socially and financially viable to
do so. A traffic impact assessment is also an integrally necessary
component of any such
assessment for a number of quite obvious
reasons: its results are necessary to inform the proper assessment of
the financial viability
of the proposals and their socio-economic
impacts . . .)’ (Footnote omitted.)
[49]
The court below was absolutely certain that the Transport Minister’s
decision to approve
SANRAL’s proposal qualified as
administrative action within the meaning of that expression in
PAJA.
[35]
It arrived at this
conclusion, first by reasoning that the Transport Minister, in
considering SANRAL’s proposal, was exercising
a statutory
function and, second, to the extent that the exercise of his
discretionary powers included ‘overtones of policy’
it
would be in the ‘narrower sense’.
[36]
Having regard to the definition of administrative action in s 1 of
PAJA,
[37]
the court below took
the view that in approving SANRAL’s proposal, the Transport
Minister’s decision had a direct external
effect in that SANRAL
could proceed to declare the roads as toll roads and effectively
conclude a contract of the nature contemplated
by s 28 of the
Act,
[38]
the material
provisions of which will be dealt with in due course.
[50]
Having arrived at the conclusion that the Transport Minister did not
act as required by s 27(1)
of the Act, the court below stated,
subject to the question of condonation for the delay in bringing the
application, that if the
application for review was to be
entertained, it would be upheld.
[39]
Binns-Ward and Boqwana JJ thought it meet ‘if only for the
future guidance of the parties, to also express [themselves] on
the
City’s allegations about the shortcomings in the public
participation process in relation to the Minister’s
decision-making
in terms of s 27(4) of the SANRAL Act’.
[40]
The court rejected the City’s contention that the Transport
Minister’s decision whether to approve SANRAL’s proposal,

had to be preceded by a discrete process of public consultation, over
and above that which SANRAL had to undertake in terms of
s 27(4) of
the Act.
[41]
However, the
learned judges held that a fair procedural process in the
circumstances would have been for SANRAL to have furnished
a copy of
its report to the Transport Minister and to have afforded persons who
had responded to its notices for comment to make
further submissions
to the Transport Minister in reaction to the report if so
advised.
[42]
That report had,
in fact, not been supplied to interested parties.
[51]
Having dealt with the City’s challenge to the Transport
Minister’s decision in terms
of s 27(1), the court proceeded to
consider the City’s challenge to SANRAL’s purported
decision to seek the Transport
Minister’s approval to declare
the roads toll roads, the main ground of objection being that the
SANRAL board had not, in
fact, resolved to apply to the Transport
Minister for the approval of the proposal. Even though not thinking
it strictly necessary
to deal with that ground of attack, the court
below nevertheless considered it appropriate to do so.
[43]
[52]
The court below had regard to the following part of the answering
affidavit of Mr Nazir Alli,
the Chief Executive Officer of SANRAL:
‘
Insofar
as the decision of the Board is concerned I confirm that before
SANRAL submitted its application to the Minister of Transport

requesting the approval contemplated by section 27 of SANRAL Act, the
Board took a decision (i) to apply for the Minister of Transport’s

approval and (ii) that in the event of the Minister of Transport
providing such approval, to declare the national road concerned
a
toll road. At the time the Board was properly apprised of the
Project, including the intent to toll process and the application
to
the Minister of Transport, and the Board had regard to all relevant
consideration in this regard. Following the Minister of
Transport’s
approval pursuant to the instructions of the Board I accordingly
arranged for the publication of Government Notice
978. SANRAL has
been unable to find documents specifically recording this Board
decision. Accordingly in order to prevent any uncertainty
in this
regard a resolution was passed by the Board in May 2014, a copy of
which is attached . . . .’
[53]
The court also took into account that in 2014 Mr Alli had submitted
an explanatory memorandum
to members of a newly constituted Board,
seeking their signature to a round-robin resolution, directed at
‘confirming’
the declaration of the roads as toll roads
and curing, so he thought, the absence of a documented record of the
decision to seek
the Transport Minister’s approval.
[44]
The court below went on to explore Mr Alli’s three-and-a-half
page memorandum. It took into account Mr Alli’s averments
in
the memorandum that ‘despite the absence of such a resolution,
the board was kept fully informed of the various steps
undertaken in
connection with the Project’. The learned judges noted that the
memorandum contained a potted history of the
Project.
[45]
The court below recorded that the last indication of any direct
consideration of the Project by the Board was 20 January 2004.
[46]
Binns-Ward & Boqwana JJ held that the gravamen of Mr Alli’s
evidence, considered contextually, was that a decision by
the Board
was in fact made, but that a documentary record of the minutes could
not be found.
[47]
[54]
Binns-Ward and Boqwana JJ considered it extraordinary for there to be
no minute of such an important
decision involving a multi-billion
rand project.
[48]
In para 171
of the judgment the following appears:
‘
These features,
considered together, irresistibly compel the conclusion that no
decisions, as required by s 27(4), were taken by
the Board. Mr Alli’s
bald assertion to the contrary is insufficient to displace their
inexorable effect. He has failed even
to attempt to explain how there
could be such a complete absence of a document trail if the decisions
had been made. He has not
even been able to reconstruct from the
Board’s calendar when the alleged decisions would have been
made. SANRAL has not been
able to put up the evidence of a single
director as to the occasions upon which and the circumstances in
which the alleged decisions
were made, or as to the content of any
discussions that must have preceded them.’
[55]
The court below concluded that, if it were to condone the City’s
delay, the Board’s
failure to take a decision with due regard
to all the relevant facts would be yet another reason to set aside
the declaration of
the toll road.
[49]
[56]
The court also dealt with an eleventh hour application by SANRAL to
have admitted, a number of
supplementary answering affidavits by
persons who were members of the Board at the time that the proposal
was submitted to the
Transport Minister, and by others who were
directors in 2014, when the draft round-robin resolution to which Mr
Alli’s explanatory
memorandum was attached was circulated.
[50]
The court refused to admit the affidavits. It did so, first, on the
basis that notice was given of the application on 17 July 2015,
less
than one month before the hearing of the principal case was due to
commence.
[51]
It was envisaged
that application would be made on the commencement of proceedings on
11 August 2015. Second, it held that the
supplementary affidavits
added nothing of significance to the evidence already before it.
[52]
Two of the affidavits, those deposed to by Messrs Donaldson and
Macozoma, related to the issue of whether the Board had resolved
to
apply for the approval of the Transport Minister, the contents of
which added nothing of factual substance to what had already
been
averred in paragraph 16 of SANRAL’s principal answering
affidavit deposed to by Mr Alli on 22 October 2014.
[57]
The judgment went on to say the following about the affidavits of
Donaldson and Macozoma (para
185):
‘
Their
affidavits contained no indication whatsoever as to when, where, or
in what circumstances, the alleged resolutions were adopted.
Neither
of them gave any indication of any recollection of any discussion by
the board of the submissions received from the public
or the
municipalities. Like that of Mr Alli, their evidence also offered no
explanation of how such important decisions could not
have been
recorded in a board meeting agenda document, or minuted, or how the
omission to have minuted them could not have been
detected by any of
the directors at the next meeting of the board when it would have
been standard procedure – as evidenced
in minutes that have
been produced – to note and adopt the minutes of the previous
meeting. Thus, if Mr Alli’s evidence
on the point were to be
determined in the principal case to be so far-fetched and untenable
as to be rejected out of hand on the
papers, so would theirs, and for
the same reason.’
The
court took the view that the evidence in the affidavits by current
Board members also added nothing of substance to the evidence
already
before the court.
[58]
Having dealt with the issues set out above, the court below turned to
the question of condonation
and considered whether the interests of
justice weighed in favour of the City. The factors that the court
took into account are
set out in paras 204
et seq
of the
judgment. The court thought it significant that the provisions of the
Act had been ignored, or misapplied in a number of
material respects.
It said the following (para 205):
‘
The
resultant breaches of the principle of legality are stark, especially
when they are considered cumulatively. It is of special
concern that
the nature of the unlawful conduct that has been identified in these
proceedings goes in material part to a failure
to give proper effect
to the right of public participation. That is something that is
fundamental to the effective expression of
everyone’s right to
administrative action that is lawful, reasonable and procedurally
fair. It also a feature of the decision-making
that puts it
strikingly at odds with the founding values of accountability,
responsiveness and openness, which are meant to underpin
democratic
government in this country and critically distinguish it from the
authoritarian system that prevailed in the pre-Constitutional
era.’
[59]
Equally important, in the view of the court, was that the
administration of the Act potentially
affects a wide range of rights
and interests of a broad section of the national community and that
it was in the public interest
that the Act be lawfully administered
and implemented, in faithful compliance with constitutional values.
The court below was astute
not to overlook the prejudicial effect of
the City’s delay on SANRAL’s interests.
[53]
It accepted that a considerable amount of money had been expended in
the tender process. It took into account the prejudice that
the
Consortium might suffer if the Project was ended. It went on to
conclude as follows (para 207):
‘
In
our judgment, however, these considerations do not weigh heavily
enough to displace the requirements of the interests of justice
that
we have identified. The fact that the determination of the challenge
to the declaration of the roads as toll roads will require
SANRAL and
the Minister to repeat the process in terms of s 27(4) of the SANRAL
in proper compliance with the requirements of those
provisions if
they wish to continue with the project does not mean that the tender
process undertaken to date will necessarily
be redundant. The time
that would be involved in a fresh process in terms of s 27(4), if it
were efficiently undertaken, would
also not unduly delay the
desirable construction and upgrading of the roads, if it were to be
lawfully decided at the conclusion
of such a process to proceed with
the tolling project.’
[60]
Penultimately, the court below turned to deal with the interdict
sought by the City, prohibiting
SANRAL from entering into a
concession agreement based on a draft that formed part of the tender
process. The City’s concerns
are set out below as contemplated
in s 28(1)
(b)
of the SANRAL Act.
[54]
[61]
Binns-Ward and Boqwana JJ had regard to the material provisions of s
28(1) of the Act which read
as follows:
‘
(1) Despite
section 27, the Agency may enter into an agreement with any person in
terms of which that person, for the period and
in accordance with the
terms and conditions of the agreement is authorised –
(a)
to
operate, manage, control and maintain a national road or portion
thereof which is a toll road in terms of section 27 or to operate,

manage and control a toll plaza at any toll road; or
(b)
to
finance, plan, design, construct, maintain or rehabilitate such a
national road or such a portion of a national road and to operate,

manage and control it as a toll road.’
Section
28(2) provides that an authorised person will be entitled, subject to
subsection (3) and (4), to levy and collect a toll
on behalf of
SANRAL or for its own account. Section 28(4) provides:
‘
(4) The amount of
the toll that may be levied by an authorised person as well as any
rebate on that amount or any increase or reduction
thereof, will be
determined in the manner provided for in section 27(3), which section
will apply, reading in the changes necessary
in the context, and, if
applicable, the changes necessitated by virtue of the agreement
between the Agency and the authorised person.’
[62]
It was the City’s case that, even though SANRAL and the
Consortium had not yet signed a
concession contract, the scope for
negotiating terms had been progressively reduced by the time the
prepared tenderer was selected
because of the manner in which the
tender process was designed. The City contended that virtually all
the provisions of the contemplated
concession contract had been
determined during the tender process.
[63]
A major concern for the City was an envisaged reimbursement clause,
triggered in the event that
the tariffs determined by the Transport
Minister in terms of s 27(3) of the Act were lower than the base
toll tariffs or adjusted
toll tariffs, provided for in the draft
contract. In terms of the draft contract, so it was contended, SANRAL
would have to pay
the Consortium or any other concessionaire an
amount sufficient to place it in the financial position it would have
been in, but
for the lower tariff determination. The City complained
that the effect of the reimbursement clause, or its equivalent, would
be
to unlawfully fetter the discretion that SANRAL is required to
exercise in determining toll tariffs in terms of s 27(3) of the Act.

SANRAL’s response was that the base toll tariffs are still open
for negotiation at its instance and it still has the option
to
withdraw from the Project, if the proposed tolls were found to be
unaffordable. Furthermore, in terms of the Public Finance
Management
Act 1 of 1999 (the PFMA) the approvals of the Transport Minister and
the Minister of Finance have to be obtained before
the contract can
be concluded. Simply put, SANRAL contended that the interdictory
relief sought by the City was premature.
[64]
The court below was unwilling to assume that the Transport Minister
and SANRAL, in moving forward
to make the contemplated statutory
based decisions, would act unlawfully.
[55]
[65]
The court considered the contention on behalf of the City, that the
draft concession contract
did not in fact provide that it was subject
to the consent of the Transport Minister and the Minister of
Finance.
[56]
In this regard
the City placed reliance on the resolutive conditions contained in
the draft contract which did not include a provision
relating to such
consent. Of further concern to the City was a draft deed of
suretyship, which provided for SANRAL to bind itself
to lenders as
surety and co-principal debtor for payment by the debtor to the
concessionaires. Provision was made for the Transport
Minister to
sign the deed on behalf of SANRAL in concurrence with the Minister of
Finance. The City was of the view that the provisions
of the PFMA had
no application and it did not contemplate that every time SANRAL
entered into a contract it would have to be done
in concurrence with
the Transport Minister and the Minister of Finance. The court below
took a contrary view. It stated that the
endorsement of the
reimbursement clause by the Minister of Finance would serve as an
indication of acceptance by the National Treasury
of the risk of
reimbursement when the eventuality set out above materialised.
[57]
The court took the view that the recent experience in relation to
OUTA
would conduce to an especially critical scrutiny of the contract
before it was endorsed by the Minister of Finance.
[58]
[66]
For all the reasons set out above the City’s application for
interdictory relief was dismissed.
[67]
Finally, the court dealt with the application by the City that the
Board’s 2014 decision
be reviewed and set aside.
[59]
Accepting that the decision was not remotely statutorily compliant,
the court below was not persuaded that the decision constituted

administrative action and was unwilling to exercise the court’s
power of judicial review in relation thereto. It took the
view that
the City’s concerns that SANRAL might take advantage of the
failure to make such a declaration were misplaced.
It said the
following (para 274):
‘
It
will be clear enough from the form of consequential relief to be
granted upon the review and setting aside of the tolling decisions

that if the roads are to be declared as toll roads, this may occur
only after the provisions of s 27(4) have been complied with
pursuant
to a fresh process to be commenced
ab initio
. No order will be
made in respect of the relief sought in terms of paragraph 3B of the
notice of motion.’
Conclusions
[68]
It has to be borne in mind that SANRAL’s primary attack was
against the decision of the
court below condoning the unreasonable
delay in bringing the application for review of the impugned
decisions in relation to the
intent to toll process. The attack
against the merits of the decision was secondary. In the present
case, considering that the
critical challenge to the decision of the
Board and the decisions of the Transport Minister is one of legality,
the singular importance
of PAJA is in relation to the 180 day
time-bar period provided, for in s 7 and the power given to the
reviewing court, in terms
of s 9,
[60]
to extend that period.
[69]
With reference to this court’s judgment in O
pposition to
Urban Tolling Alliance v South African National Roads Agency Limited
[2013] ZASCA 148
;
[2013] 4 All SA 639
(SCA) (
OUTA SCA
), it
was submitted on behalf of SANRAL that sequentially the question of
delay must be dealt with before the merits of a review
can be
entertained. Unless an extension is granted, so it was contended, a
court is precluded from embarking upon the merits of
a review
application. It was contended by SANRAL that the delay of more than
three years, from the date of the Transport Minister’s
approval
of SANRAL’s proposal to the date that the review application
was launched, was unexplained, unreasonable and in
the light of all
the circumstances ought not to have been condoned. Insofar as the
merits of the review were concerned, SANRAL’s
argument was
uncomplicated. First, it was adamant that SANRAL’s Board, after
considering all relevant material, had in fact
taken a decision to
seek the Transport Minister’s approval for its proposal. It
insisted that the decision had been taken
before the proposal was
submitted to the Transport Minister. Second, it provided the
following summary in written heads of argument
in relation to the
‘reviewability’ of the Transport Minister’s
decision to approve its proposal:
‘
The
Transport Minister considered the application for approval placed
before him and verified that SANRAL had complied with the
SANRAL Act.
His actions are not reviewable.’
[70]
A convenient starting point, in addressing SANRAL’s contentions
presented in the preceding
paragraphs, is the certain and emphatic
manner in which the court below categorised the Transport Minister’s
decisions, purportedly
taken in terms of ss 27(4) and (1) of the Act,
as ‘administrative action’, which was subject to judicial
review in
terms of the provisions of PAJA, including the 180 day
time-bar provision referred to above.
[71]
I am rather less sanguine concerning the nature of the Transport
Minister’s powers in making
the decisions. In
Grey’s
Marine Hout Bay (Pty) Ltd & others v Minister of Public Works &
others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA), Nugent JA, stated
that the question as to ‘what’ constitutes administrative
action – the exercise of the
administrative powers of the State
– has always eluded complete definition.
[72]
Having regard to the definition in PAJA, Nugent JA said the following
(para 22):
‘
At
the core of the definition of administrative action is the idea of
action (a decision) “of an administrative nature”
taken
by a public body or functionary. Some pointers to what that
encompasses are to be had from the various qualifications that

surround the definition but it also falls to be construed
consistently, wherever possible, with the meaning that has been
attributed
to administrative action as the terms is used in s 33 of
the Constitution (from which PAJA originates) so as to avoid
constitutional
invalidity.’ (Footnote omitted.)
The
centrality of the decision having to be of ‘an administrative
nature’ was endorsed by the Constitutional Court in
Minister
of Defence and Military Veterans v Motau & others
[2014] ZACC
18
;
2014 (5) SA 69
(CC) para 33.
[73]
In
Grey’s
Marine
,
this court held that whether particular conduct constituted
administrative action depended primarily on the nature of the power

rather than upon the identity of the person exercising such
power.
[61]
In
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
[1999]
ZACC 11
;
2000 (1) SA 1
(CC) (
SARFU
),
the Constitutional Court succinctly put it thus (para 141):
‘
What
matters is not so much the functionary as the function.’
In
that case the Constitutional Court recognised that ‘[d]etermining
whether an action should be characterised as the implementation
of
legislation or the formulation of policy may be difficult’.
[62]
That
court went on to say the following (para 143):
‘
It
will, as we have said above, depend primarily upon the nature of the
powers. A series of considerations may be relevant to deciding
on
which side of the line a particular action falls. The source of the
power, though not necessarily decisive, is a relevant factor.
So,
too, is the nature of the power, its subject-matter, whether it
involves the exercise of a public duty and how closely it is
related
on the one hand to policy matters, which are not administrative, and
on the other to the implementation of legislation,
which is. While
the subject-matter of a power is not relevant to determine whether
constitutional review is appropriate, it is
relevant to determine
whether the exercise of the power constitutes administrative action
for the purposes of s 33. Difficult boundaries
may have to be drawn
in deciding what should and what should not be characterised as
administrative action for the purposes of
s 33. These will need to be
drawn carefully in the light of the provisions of the Constitution
and the overall constitutional purposes
of an efficient, equitable
and ethical public administration. This can best be done on a case by
case basis.’ (Footnotes
omitted.)
[74]
The Transport Minister is a member of the Executive, responsible for
executing government policy
and deciding, as a member of the
Executive, whether to approve the tolling of specified national
roads. The Transport Minister
has to decide on categories of vehicles
and classes of persons which, or who, should be subject to paying
tolls and which, or who,
should qualify for exemptions. In terms of
s 27(3) the amount of the toll is ultimately decided upon by the
Transport Minister.
The Transport Minister, in scrutinising the
application for the declaration of a toll road received from SANRAL,
is exercising
a control function as a member of the Executive over an
organ of State which is statutorily and politically accountable to
her.
It can rightly be said that, in exercising his powers and
performing her functions in terms of the Act the Transport Minister
is
developing and implementing national policy and/or co-ordinating
the functions of state departments and administrations.
[63]
Such actions are excluded from review under PAJA.
[64]
[75]
In my view, it is thus not entirely clear that the Transport Minister
in acting in terms of s
27, is performing actions of an
administrative nature. What is clear, however, is that the Transport
Minister is constrained to
make decisions in accordance with
statutory prescripts. As stated above, it is now accepted as
elementary that the exercise of
public power is subject to
constitutional control and is clearly constrained by the principle of
legality. A repository of power
may not exercise any power or perform
any function beyond that conferred upon it by law and must not
misconstrue the nature and
ambit of the power.
[65]
[76]
Turning to the nature of the Board’s decisions, it is
necessary, first, to have regard
to the long title of the Act, which
states that the Act was brought into being to make provision for
SANRAL to ‘manage and
control the Republic’s national
road systems and take charge, amongst others, of the development,
maintenance and rehabilitation
of national roads within the framework
of national government policy’.
[66]
This seems to indicate that when SANRAL exercises powers in terms of
the Act it does engage in administrative action as contemplated
in
PAJA.
[77]
The material parts of s 25(1) of the Act, which read as follows,
appear to support that conclusion:
‘
(1) The Agency,
within the framework of government policy, is responsible for, and is
hereby given power to perform, all strategic
planning with regard to
the South African national roads system, as well as the planning,
design, construction, operation, management,
control, maintenance and
rehabilitation of national roads for the Republic, and is responsible
for the financing of all those functions
in accordance with its
business and financial plan, so as to ensure that government’s
goals and policy objectives concerning
national roads are achieved, .
. . .’
[78]
Although my inclination, insofar as to whether the Minister and
SANRAL’s Board were engaged
in administrative action, is the
converse of that of the court below, I do not find it necessary to
express a definitive conclusion
on this question. Because the
challenges to the Board’s decision and the decisions of the
Transport Minister in terms of
s 27 of the Act are based on the
principle of legality, it does not, for practical purposes, matter
whether condonation for the
delay in launching the application is
approached in terms of the provisions of PAJA or otherwise. As will
be demonstrated below,
in both instances, ultimately the decision
whether to condone the delay is based on whether the interests of
justice so require.
[79]
Before the advent of PAJA, it was recognised by our courts that an
undue and unreasonable delay
on the part of an aggrieved party in
initiating review proceedings might cause prejudice to other parties
to the proceedings and
that, therefore, in such cases the Court
should have the power to refuse to entertain the review. An
associated rationale for what
became known as the ‘delay rule’
was the public interest element in the finality of decisions by
repositories of State
power, whatever their nature. In this regard
see
Harnaker v Minister of the Interior
1965 (1) SA 372
(C),
at 376H-377D and 380;
Wolgroeiers Afslaers (Edms) Bpk v
Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at 41D-F; and
Oudekraal Estates (Pty) Ltd v City of Cape Town
&
others
[2009] ZASCA 85
;
2010 (1) SA 333
(SCA) (
Oudekraal 2
)
para 33. This court, in
Wolgroeiers
(at 39B-D), held that in
the event of a complaint that there was an unreasonable delay in
initiating review proceedings, the following
had to be decided; (a)
whether an unreasonable time has passed and, (b) if so, whether the
unreasonable delay ought to be condoned.
It held, in relation to the
last mentioned enquiry that a court exercises a judicial discretion
with regard to all the relevant
circumstances. At common law this
rule applied also in relation to what we now describe as challenges
based on the principle of
legality.
[80]
In
Tasima
(Pty) Ltd v Department of Transport
[2015] ZASCA 200
;
[2016] 1 All SA 465
(SCA) paras 29-30, this court
observed that in considering whether to extend the 180 day period in
terms of s 9, a court would
be guided by what the interests of
justice dictate. In order to determine that question, regard should
be had to all the facts
and circumstances.
[67]
This equates with how the judicial discretion on whether to condone a
delay was exercised before the advent of PAJA. There is no
maximum
period provided for in PAJA and the cases in which the 180 day period
was extended are diverse in relation to the period
of delay.
[68]
Simply put, whether one is considering condoning a delay either under
the provisions of PAJA or beyond it, the same determining
criterion
applies, namely, the interests of justice. Viewed thus, a definitive
classification of the nature of the impugned decisions
is not
strictly necessary, particularly if regard is had to the challenge
essentially being one of legality.
[81]
As set out in para 69 above, it was submitted by SANRAL, with
reference to
OUTA
SCA
,
that the question of delay must be dealt with before the merits of
the review can be entertained. That suggests that, parts (a)
and (b)
of the enquiry set out in para 79 above, have to be dealt with before
the merits of the review application can be considered.
It is true
that in
OUTA
SCA
,
this court considered it important to settle the court’s
jurisdiction to entertain the merits of the matter by first having

regard to the question of delay. However, it cannot be read to signal
a clinical excision of the merits of the impugned decision,
which
must be a critical factor when a court embarks on a consideration of
all the circumstances of a case in order to determine
whether the
interests of justice dictates that the delay should be condoned. It
would have to include a consideration of whether
the non-compliance
with statutory prescripts was egregious.
[69]
I did not understand counsel on behalf of SANRAL to suggest
otherwise.
[82]
I turn to consider, first, whether the delay was unreasonable. The
City, in its founding and
replying affidavits, provided an extensive
explanation for its delay in launching the review proceedings. It
insisted that it did
not deliberately refrain from instituting
proceedings, nor did it adopt a position of indifference. It
contended that, at worst,
it could be accused of being indecisive.
The City asserted that it had held out the hope that discussion and
engagement would resolve
the impasse. It did, however, accept that it
might have been unwise in doing so. The City contended that it was
reassured by SANRAL’s
assertions that its concerns were being
addressed. The City was of the view that SANRAL’s inertia
between the publication
in the
Government Gazette
of the
declaration of the roads as toll roads up until the invitation to
tender in March 2010 lulled it into a false sense of complacency.
The
City also relied on the IRFA process which ran from 18 July 2011
until 16 March 2012.
[83]
It must have been clear to the City, very early on, that SANRAL had
adopted an intractable position
about how the Project was to be
funded. It is true that the City struggled to obtain documentation in
substantiation of its review
application. However, it had mechanisms
at its disposal to compel production of the necessary information
which it could have resorted
to much earlier. The City’s
explanation that it continued engaging with SANRAL in an attempt to
persuade it to its point
of view and to correct what it saw as flaws
in the decision making processes has to be viewed against the
parties’ entrenched
positions. It is true there are some
ameliorating features that arise out of the City’s explanation
referred to in the preceding
paragraph. However, before us, it was
conceded on behalf of the City that the delay of some three years was
unreasonable. Given
the considerable lapse of time, that concession
was rightly made.
[84]
I now turn to consider the totality of circumstances to determine
whether the court below rightly
condoned the delay. That exercise
will involve, inter alia, a consideration of the merits of the review
application. Prejudice
to SANRAL and the public interest undoubtedly
also have to feature in the decision whether to condone the delay.
[85]
I start with the merits of the review. Rather than start with the
Transport Minister’s
decision, as did the court below,
sequentially it is more appropriate to begin with whether there was a
proper decision by the
Board to seek the Transport Minister’s
approval in terms of s 27(1) of the Act.
[86]
In this regard it is necessary to examine the relevant statutory
provisions dealing with the
Board’s objects, powers, functions
and governance. As stated above, SANRAL was established in terms of s
2 of the Act to
take ‘charge of the financing, management,
control, planning, development, maintenance and rehabilitation of the
South African
national roads system’.
[70]
[87]
Chapter 2 of the Act is entitled ‘Governance and staffing of
Agency’. Section 12(1)
provides:
‘
(1) The Agency is
governed and controlled, in accordance with this Act, by a Board of
Directors. The Board of Directors represents
the Agency, and all acts
of or under the authority of that Board will be the acts of the
Agency.’
[88]
Significantly, s 15 specifically provides a procedure for decisions
to be taken by SANRAL’s
Board. It reads as follows:
‘
(1)
Any meeting of the Board will be held at the place and time
determined by the Board.
(2)
A quorum for any meeting of the Board will be five members.
(3)
The decision of the majority of the members present at any meeting of
the Board will be the decision of the Board, provided
there is a
quorum. Where there is an equality of votes, the chairperson who has
a casting vote in addition to a deliberative vote,
must exercise that
casting vote so as to break the deadlock in decision making.
(4)
Except as provided by this section, the Board determines the
procedure applicable at its meetings.’
[89]
Importantly, s 17 of the Act compels the SANRAL Board and its
committees to keep minutes of proceedings
of meetings and requires
the copies to be circulated to members. Section 18 does provide for
delegation and assignment of certain
powers, functions or duties of
the Board by special resolution. However, s 18(5)
(d)
prohibits the delegation of the powers, functions and duties of
the Board to declare a road a toll road. In those circumstances there

was rightly no reliance on this section and it need detain us no
further.
[90]
Section 25 of the Act is entitled ‘Main functions of Agency’.
Section 25(1) provides:
‘
(1)
The Agency, within the framework of government policy, is responsible
for, and is hereby given power to perform, all strategic
planning
with regard to the South African national roads system, as well as
the planning, design, construction, operation, management,
control,
maintenance and rehabilitation of national roads for the Republic;
and is responsible for the financing of all those functions
in
accordance with its business and financial plan, so as to ensure that
government’s goals and policy objectives concerning
national
roads are achieved . . . .,’
[91]
It is in fulfilling that function that SANRAL purported to make a
proposal to the Transport Minister
for the tolling of the roads in
question. His approval was sought in terms of s 27 of the Act. In
order to make that proposal and
critically, in order to fulfil the
conditions for the Transport Minister’s approval set out in s
27(4) of the Act, what was
required was a Board decision reached at a
properly constituted meeting, following on a consideration of all the
relevant information.
[92]
It will be recalled that Binns-Ward and Boqwana JJ took into account
that SANRAL had produced
no documentary proof of a decision by the
Board, despite proceedings to compel the production of relevant
information.
[93]
The court below also observed that s 242 of the Companies Act 61 of
1973 obliged SANRAL to keep
minutes of Board meetings in a bound
minute book. Non-compliance carried with it the threat of criminal
sanction. This obligation
relating to minutes is in addition to the
requirements of s 17 of the Act discussed at para 89 above. The
failure is inexplicable,
particularly if regard is had to the manner
in which SANRAL otherwise operates, by preparing agendas and
complying with procedures
to ensure that meetings are conducted
lawfully.
[94]
Binns-Ward and Boqwana JJ stated that, even if the minute could not
be produced or had been misplaced,
one would have expected it to have
been reflected as an agenda item for a scheduled meeting.
[71]
No Board member produced an entry in a diary or could link a meeting
at which such a decision was taken with any payment received
or
travel arrangements made in relation thereto. The learned judges,
having regard to the provisions of s 27(4) reasoned that one
would
have expected there to have been a meeting of SANRAL’s
directors for them to apply their minds to the responses to
notices
contemplated in ss 27(4)
(a)
and
(b)
.
[72]
One would have expected documentation in relation to associated
meetings.
[95]
The high-water mark of SANRAL’s case in relation to the Board
having taken a decision to
apply for ministerial approval appears in
that part of Mr Alli’s affidavit set out in para 52 above.
However, there was no
documentary or other corroboration for his
assertion that the Board had made a decision and it appears that his
statement that
the Board was kept apprised of the Project and the
application to the Transport Minister was deliberately obfuscatory.
Why, one
might ask, was it necessary to insert that statement if an
informed decision had been taken by the Board?
[96]
The City rightly submitted that there is no evidence of any
consideration by the Board of the
recommendation to the Transport
Minister, let alone a decision by it in that regard. In the City’s
application in 2013 for
an interdict against SANRAL it alleged that
there was no evidence of a Board decision. That allegation was left
unanswered. The
court below recorded that the last minuted
consideration by the Board of the Project was in January 2004.
[73]
[97]
Faced with the City’s persistent challenge to the lack of a
decision (resolution) by the
Board to seek the Transport Minister’s
approval, Mr Alli, as recorded at para 53 above, wrote a memorandum
to a newly installed
Board to seek a round-robin resolution, agreeing
to seek the Transport Minister’s approval for the declaration
of the roads
as toll roads. The relevant part of that memorandum
reads as follows:
‘
The purpose of
this memorandum is to ask the Board to resolve that the national road
N1, Belville (R300 interchange) to Sandhills
and national road N2,
Swartklip (R300 Interchange) to Botrivier be declared as toll roads.
This element in the procedures to declare a road as a toll road
was inadvertently omitted in the process to declare the above roads

as toll roads.
’(My emphasis.)
[98]
That memorandum, far from indicating an insubstantial inadvertent
omission, confirms the suspicion
that there had indeed been no prior
Board consideration or resolution. The court below, in para 175 of
its judgment, therefore
correctly stated that it was suggestive of an
appreciation by Mr Alli that the City had uncovered a fatal flaw in
the process and
a sense of desperation on his part to try to recover
the situation.
[99]
This attempt to recover the situation by way of the round-robin
resolution merely compounded
the problem. The memorandum, addressed
to the 2014 Board by Mr Alli, attempted to telescope into three pages
the history leading
up to the approval of the Transport Minister.
Even if it is true that the Board, as previously constituted, was
‘kept apprised’
of the various steps, it can hardly be
argued that this was sufficient to enable the differently constituted
Board in 2014 to apply
its mind to all the relevant considerations,
including those set out in s 27(4) of the Act. And since it has
already been demonstrated
that the prior Board had not in fact made a
decision with regard to all the relevant circumstances, the
subsequent round-robin
resolution had no value. For the same reasons,
a subsequent attempt to ratify that round-robin resolution at a board
meeting held
in June 2014 was equally ineffective. This was disorder
made worse than before – confusion worse confounded.
[100]
The court below cannot be faulted for concluding that the assertion
by Mr Alli, that the Board had made a decision,
did not create a
genuine dispute of fact and, on the basis of what is set out above,
could summarily be rejected on the papers.
[74]
It went on to hold that Board did not make a decision to seek
approval. Having arrived at that conclusion, the court said the
following in para 177:
‘
For this reason
too, the declaration of the roads as toll roads would fall to be set
aside if this court were to condone the City’s
delay and
entertain the application for the relief described [17.5] above.’
[101]
The failure by the Board to make a decision to seek approval for the
tolling of the roads was a fundamental and
egregious flaw. The
Project was one of national importance involving costs that run into
billions of Rands. It implicates national
policy and impacts on the
National Treasury and industry and the citizens of the province and
the country. It required serious
and informed deliberation which, as
demonstrated above, was sorely lacking.
[102]
I now turn to deal with the failure of the court below to set aside
the 2014 resolution. I have difficulty with
the finding by the court
below that the 2014 resolution by the Board is beyond review. I
recognise that the court below held that
the resolution was not
reviewable on the basis that it was not administrative action that
fell within the confines of PAJA. As
stated above, even that
conclusion is questionable. However, whatever its nature, the
resolution cannot be beyond judicial scrutiny.
In order for a
national road to be lawfully declared a toll road in terms of the Act
and in order for a lawful decision to be made
concerning the amount
of the toll and the categories of persons to which it will apply, the
statutory prescripts have to be followed.
Simply put, neither the
Board nor the Transport Minister can act outside of the confines of
the Act. And there can be no doubt
as to the invalidity of the 2014
resolution.
[103]
Leaving aside momentarily, the question whether condonation should be
granted, the conclusion set out above in
relation to the lack of a
decision on the part of the Board, ought to be decisive of the
appeal. In the absence of a valid decision
to seek the approval of
the Transport Minister, the jurisdictional basis for the exercise of
his powers and functions in terms
of ss 27(4) and (1) of the Act
would be lacking and his decisions were therefore, on that basis
liable to be set aside. It would
also mean that the Board should be
required, in accordance with the constitutional principles of
effective, transparent, accountable
and coherent governance,
[75]
to consider all relevant factors in complying with its statutory
mandate. It would therefore have to make the decision that it
has
failed to make in the last eight years, in accordance with statutory
prescripts, including complying with the preconditions
for the
Transport Minister’s approval in terms of s 27(1) of the Act,
set in s 27(4).
[104]
In the event of condonation being granted, the relief sought by the
City in this regard ought to follow.
[105]
Even though a decision on the lack of a Board decision is decisive
(assuming that condonation is granted), I nevertheless
consider it
necessary to address in brief the reasoning and the conclusions by
the court below in relation to the Transport Minister’s

decision, purportedly made in terms of s 27(1) of the Act. As set out
in para 44 above, the attitude adopted by the Transport Minister
and
SANRAL was that the Transport Minister had an oversight role and that
his primary function was to see to it that the provisions
of ss
27(4)
(a)
–
(d)
had been complied with. In oral
argument in the court below, that position evolved into a submission
that, in addition, the Transport
Minister’s role was one of
assessing SANRAL’s proposal to see if it was in conformity with
government policy. In my
view the court below cannot be faulted for
its reasoning and conclusion set out in para 46 above, that the
Transport Minister’s
role could not be reduced to one that is
clerical. The national importance of the Project, including all the
implications referred
to above, required the Transport Minister, in
his role as a member of the Executive, to make an independent
decision, weighing
up all the relevant considerations, including but
not limited to financial considerations and the public interest. The
Transport
Minister was required to bring an independent mind to bear
when deciding whether to approve the proposal. Furthermore, the court

below, in my view, cannot be faulted for stating that SANRAL’s
report ought to be provided to interested parties.
[106]
In addition, given the lack of a valid Board decision, there could
hardly be compliance with s 27(4) of the Act
and aside from the
question of condonation, that decision was thus also liable to be set
aside.
[107]
I now turn to deal with whether condonation was correctly granted. In
considering whether to condone the delay,
the court below accepted
that SANRAL had thus far spent a considerable sum of money in
embarking on the Project.
[76]
The amount provided by SANRAL is approximately R136 million. No
details were provided as to how this figure was constituted. The

court below also had regard to the prejudice that the Consortium
might suffer. However, it has to be borne in mind that the Consortium

did not participate in the proceedings in the court below or before
us. As against the prejudice to SANRAL and the Consortium,
the court
below considered, in addition to the egregious flaws in the process
leading up to the Transport Minister’s approval,
the wide range
of rights and interests of a broad cross-section of the national
community.
[77]
[108]
There is of course the considerable financial burden to be borne by
the public and the State. The public interest
is a weighty factor.
The principle of legality and the constitutional principles of
transparent and accountable governance also
intrude. A factor that
also cannot be discounted is that the Transport Minister himself
placed a moratorium on the Project in 2011.
The circumstances of the
present case are different to those in
OUTA
.
The road works have not commenced. The amount already expended is
relatively small in relation to the huge cost of the entire
Project
and its implications, both for the public and the National Treasury.
The Project has been in the making for almost two
decades and its
various phases were premised on information that must by now be
dated. That too is a consideration that weighs
in favour of the City.
It was submitted on behalf of the City, with reference to what was
stated by this court in
Oudekraal
2
, para
80, that whilst finality is a good thing, justice is better.
[78]
In my view the court below cannot be criticised for granting
condonation.
[109]
I now turn to deal with the interdict sought by the City in relation
to the draft proposed concession contract
for the Project. Having
regard to the order made by the court below, it is clear that the
question is left open as to whether the
Project will be proceeded
with. In the event of it not being proceeded with, then there can
obviously be no contract for further
judicial scrutiny. Conversely,
should the Board decide to continue with the Project, there is no
certainty as to the final form
the proposal will take, or even
whether the Minister will approve that final proposal, particularly
having regard to the order
of the court below directing that the s
27(4) processes will have to be restarted ab initio. There is thus no
certainty about the
final terms and conditions of an ultimately
negotiated concession contract, which is contingent on the Project
being proceeded
with in such form as the Transport Minister might
decide. In my view, therefore, the interdictory relief sought was
rightly denied.
[110]
In relation to SANRAL’s appeal against the refusal to admit the
further affidavits, I can do no better than
to refer with approval,
to the reasoning of the court below set out in paras 56 – 57
above. The affidavits sought to be admitted
did not add anything of
substance to the evidence already before the court. The application
for leave to appeal, referred to oral
argument, is thus liable to be
refused.
[111]
SANRAL contended that the court below erred in making the costs order
referred to above. It was submitted on behalf
of SANRAL that no costs
order should have been made because the litigation was between two
organs of state. I agree with the submissions
on behalf of the City
that there is no invariable rule that one organ of state cannot be
ordered to pay the costs of another. SANRAL
relied upon
Minister
of Police & others v Premier of the Western Cape & others
[2013] ZACC 33
;
2014 (1) SA 1
(CC), para 72, and
Minister of
Defence and Military Veterans v Motau & others
2014 (5) SA 69
(CC). However, these cases are distinguishable. In the first case
both parties received the greater part of their funds from the

National Revenue Fund. In the second, the parties were two organs of
State in the same sphere of government. In the present case
SANRAL’s
funds come mainly from allocations by National Treasury from the
National Revenue Fund and the City’s funds
come mainly from
rates and service charges by its residents. In addition, in
Cape
Town City v South African National Roads Authority & others
[2015] ZASCA 58
;
2015 (3) SA 386
(SCA), this court, in deciding an
appeal related to the present matter involving the disclosure of
court documents, had no difficulty
in granting a costs order in
favour of the City against SANRAL. I see no reason to interfere with
the conclusion reached by the
court below.
[112]
As pointed out in para 3 above, the costs order against SANRAL in the
court below included the costs of three
counsel. Before us, the City
sought a similar order. The issues raised are no doubt of national
importance but not of great complexity.
In my view, the circumstances
do not warrant the employment of three counsel.
[79]
[113]
For all the reasons set out above, the following order is made:
The
application for leave to appeal against the court below’s
refusal to admit further affidavits is dismissed with costs,

including the costs of two counsel.
The
appeal is dismissed with costs, including the costs of two counsel.
The
cross-appeal is upheld with costs, including the costs of two
counsel, to the following limited extent:
3.1  Paragraph f) of
the order of the court below is amended to read as follows:
‘
f)
No order is made in respect of the relief sought by the applicant in
terms of
paragraphs 3 and 4 of the notice of motion.’
3.2
The order of the court below is supplemented with the following:
‘
j)
The round robin resolution by the first respondent’s board to
declare as
toll roads portions of the N1 (R300 interchange to
Sandhills) and the N2 (R300 interchange to Botriver) and the
subsequent ratification
thereof at the first respondent’s board
meeting of 3 June 2014 as more fully reflected in annexure NA1 to the
affidavit of
Nazir Alli (“the 2014 declaration decision”)
is declared to be invalid and of no force and effect.
k)
The 2014 declaration decision is reviewed and set aside.’
M
S Navsa
Judge
of Appeal
Appearances:
Counsel
for Appellant:
B E Leech SC ( with
him D Smith) (Heads of argument prepared by C D A Loxton SC, B E
Leech SC and D Smith)
Instructed by:
Fasken Martineau,
Sandton
Webbers,
Bloemfontein
Counsel
for Respondent:
G M Budlender SC
(with him N Bawa SC and R Paschke)
Instructed
by:
Cullinan
& Associates, Cape Town
Rosendorff
& Reitz Barry, Bloemfontein
[1]
Established in terms of s 2 of The South African National Roads
Agency Limited and National Roads Act 7 of 1998 (the Act).
[2]
The relevant part of s 7 of PAJA provides that proceedings for
judicial review brought in terms of s 6 – a section in terms

of which administrative action may be reviewed, inter alia, for lack
of compliance with statutory authority or which was procedurally

unfair, or where relevant considerations were not taken into account
– ‘must be instituted without unreasonable delay
and not
later than 180 days after the date’ of the administrative
action. Section 9(1) provides that the 180 day period
may be
extended ‘by agreement between the parties or, failing such
agreement, by a court or tribunal on application by
the person or
administrator concerned’. Section 9(2) of PAJA reads as
follows:
‘
The
court . . . may grant an application in terms of subsection (1)
where the interests of justice so require.’
[3]
Section 39(3) provides:
‘
The
Agency must determine its business and financial plan and strategic
plan and the standards and criteria for road design and
construction
and for road safety within the framework of the national roads
policy as determined by the Government and published
in terms of
subsection (1).’
See
also
National Treasury & others v Opposition to Urban Tolling
Alliance & others
[2012] ZACC 18
;
2012 (6) SA 223
(CC) para
2.
[4]
Paragraphs 65 – 68 and 94 of the concurring judgment by
Froneman J.
[5]
Paragraph 64.
[6]
It must be noted that the consortium which initially submitted the
unsolicited bid differs slightly from the Protea Parkways
Consortium
which appeared as the sixth respondent in the court below. In
particular, it seems that Concor (SA) was no longer
a member by that
stage. However, nothing turns on this.
[7]
Section 21(1) provides:
‘
The
[Environment] Minister may by notice in the
Gazette
identify
those activities which in his opinion may have a substantial
detrimental effect on the environment, whether in general
or in
respect of certain areas.’
Once
such an activity has been identified, it is prohibited except where
the Environment Minister has given written authorisation
in terms of
s 22.
[8]
The withdrawal of the Consortium was a practical measure to obviate
difficulties that might ensue in the event of the later withdrawal

by the Consortium from the Project if the subsequent tender was
awarded to someone else.
[9]
The ‘intent to toll process’ was the expression adopted
by all the parties to describe the process provided for in
terms of
s 27(4) of the Act. See
Cape
Town City v SANRAL & others
2015 (6) SA 535
(WCC) para 38 fn 35.
[10]
After the bid was submitted to SANRAL. See para 10 above.
[11]
Proposed N1-N2 Winelands Toll Highway: National Road N1, Belville
(R300 Interchange) to Sandhills and National Road N2, Swartklip

(R300 Interchange) to Bot River: Notice of the Intent to Declare
Portions of the National Roads as Continuous Toll Roads, GN
348,
GG
30911,
28 March 2008.
[12]
Technically, this title is incorrect. The Constitution reserves the
title ‘Minister’ for national government office
bearers.
This official is therefore more accurately referred to as a Member
of the Executive Council (or MEC).  Nevertheless,
for
consistency, the titles used by the parties will be used in this
judgment.
[13]
Declaration of N1-N2 Winelands Toll Highway: National Road N1,
Bellville (R300 Interchange) to Sandhills and National Road N2,

Swartklip (R300 Interchange) to Bot River as Toll Roads, GN 978,
GG
31422,
15 September 2008.
[14]
See inter alia para 61 of the judgment.
[15]
Paragraph 41 of the judgment.
[16]
Paragraph 56 of the judgment.
[17]
Paragraph 54 of the judgment.
[18]
See paras 58 - 74 of the judgment.
[19]
Paragraph 73 of the judgment.
[20]
See paras 76 – 77 of the judgment.
[21]
See paras 79 – 80 of the judgment.
[22]
Paragraph 79 of the judgment.
[23]
National Land Transport Strategic Framework, GN 1468 of 2006,
GG
29307, 27 October 2006.
[24]
Paragraphs 86 – 90 of the judgment.
[25]
It must be noted that this estimate has increased in the intervening
years. The City in its founding affidavit suggests that
‘more
recent figures’ discussed in the media put the cost at closer
to R10 billion.
[26]
Paragraph 89 of the judgment.
[27]
Paragraph 92 of the judgment.
[28]
Paragraph 93 of the judgment.
[29]
Paragraph 103 of the judgment.
[30]
Paragraph 109 of the judgment.
[31]
Ibid.
[32]
Paragraph 132 of the judgment.
[33]
See para 133 of the judgment.
[34]
Paragraph 142 of the judgment.
[35]
Paragraph 148 of the judgment.
[36]
Ibid.
[37]
The relevant part of s 1 of PAJA reads:
‘“
administrative
action”
means any decision taken, or any failure to take a
decision, by –
(a)
An organ of state, when –
(i)
exercising a power in terms of the Constitution or a provincial

constitution; or
(ii)
exercising a public power or performing a public function in terms

of any legislation; or
(b)
a natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in terms

of an empowering provision,
which
adversely affects the rights of any person and which has a direct,
external legal effect, but does not include –
(aa)
the executive powers or functions of the National Executive,
including the powers or functions
referred to in sections 79(1) and
(4), 84(2)
(a)
,
(b)
,
(c)
,
(d)
,
(f)
,
(g), (h), (i) and (k), 85(2)(b), (c), (d) and (e), 91(2), (3), (4)
and (5), 92(3), 93, 97, 98, 99 and 100 of the Constitution;
(bb)
the executive powers or functions of the Provincial Executive,
including the powers or functions
referred to in sections 121(1) and
(2), 125(2)(d), (e) and (f), 126, 127(2), 132(2), 133(3)(b), 137,
138, 139 and 145(1) of the
Constitution;
(cc)
. . .’
[38]
Paragraph 149 of the judgment.
[39]
Paragraph 152 of the judgment.
[40]
Ibid.
[41]
Paragraph 153 of the judgment.
[42]
Paragraph 154 of the judgment.
[43]
Paragraph 157 of the judgment.
[44]
Paragraph 160 of the judgment.
[45]
Paragraph 162 of the judgment.
[46]
Ibid.
[47]
Paragraph 164 of the judgment.
[48]
Paragraph 169 of the judgment.
[49]
Paragraph 177 of the judgment.
[50]
Paragraphs 178 – 189 of the judgment.
[51]
Paragraph 179 of the judgment.
[52]
Paragraphs 185 and 189 of the judgment.
[53]
Paragraph 207 of the judgment.
[54]
Paragraphs 230 – 273 of the judgment.
[55]
Paragraph 259 of the judgment.
[56]
Paragraph 268 of the judgment.
[57]
Paragraph 272 of the judgment.
[58]
Ibid.
[59]
Paragraph 274 of the judgment.
[60]
Section 9 of PAJA provides:
‘
(1)
The period of –
(a)
90 days referred to in section 5 may be reduced; or
(b)
90 days or 180 days referred to in sections 5 and 7 may be
extended for a fixed period,
by
agreement between the parties or, failing such agreement, by a court
or tribunal on application by the person or administrator
concerned.
(2)
The court or tribunal may grant an application in terms of
subsection (1) where the interests of justice so require.’
[61]
Paragraph 24.
[62]
Paragraph 143.
[63]
Section 85(2) of the Constitution sets out the executive authority
of the Republic which is vested in the President together
with other
members of the Cabinet who exercise that authority by, inter alia:
(a)
. . .
(b)
developing and implementing
national policy;
(c)
co-ordinating the functions of state departments and
administrations;
.
. . .’
[64]
See exclusion
(aa)
in the
definition of ‘administrative action’ in PAJA.
[65]
See eg
Fedsure
Life Assurance Ltd & others v Greater Johannesburg Transitional
Metropolitan Council & others
[1998]
ZACC 17
;
1999 (1) SA 374
, paras 56 – 58 and
SARFU
,
para 148.
[66]
The full long title reads:
‘
To
make provisions for a national roads agency for the Republic to
manage and control the Republic’s national roads system
and
take charge, amongst others, of the development, maintenance and
rehabilitation of national roads within the framework of
government
policy; for that purpose to provide for the establishment of The
South African National Roads Agency Limited, a public
company wholly
owned by the State; to provide for the governance and management of
that company (“the Agency”) by
a board of directors and
a chief executive officer, respectively, and to define the Agency’s
powers and functions and financial
and operational accountability,
and regulate its functioning; to prescribe measures and requirements
with regard to the Government’s
policy concerning national
roads, the declaration of national roads by the Minister of
Transport and the use and protection of
national roads; to repeal or
amend the provisions of certain laws relating to or relevant to
national roads; and to provide for
incidental matters.’
[67]
See
Camps
Bay Ratepayers’ and Residents’ Association v Harrison
[2010] ZASCA 3
;
[2010] 2 All SA 519
(SCA), at 57.
[68]
See eg
JH
v Health Professions Council of South Africa & others
2016 (2) SA 93
(WCC) paras 7-10 (three weeks late);
Beekmans
NO & others v Mobile Telephone Networks (Pty) Ltd & another
[2015]
ZAWCHC 79
paras 40-46 (approximately one and a half months late);
Matlapeng
v Minister of Justice and Constitutional Development & another
[2015] ZAGPPHC 9 paras 18-19 (six months late);
Mhlontlo
Local Municipality v Jikijela & another
[2012] ZAECMHC 16 paras 17-29 (eleven months late).
[69]
In
Khumalo
v MEC for Education
[2013] ZACC 49
;
2014 (5) SA 579
(CC), the Constitutional Court said
the following (para 57):
‘
An
additional consideration in overlooking an unreasonable delay lies
in the nature of the impugned decision. In my view this
requires
analysing the impugned decision within the legal challenge made
against it and considering the merits of that challenge.’

(Footnote omitted.)
[70]
See also the long title of the Act referred to in fn 66 above.
[71]
Paragraph 185 of the judgment.
[72]
Paragraphs 172 – 174 of the judgment.
[73]
Paragraph 92 of the judgment.
[74]
Paragraph 176 of the judgment.
[75]
See s 41 of the Constitution.
[76]
Paragraph 207 of the judgment.
[77]
Paragraph 206 of the judgment.
[78]
On the importance of considering constitutional values, the public
interest and the principle of legality in this context, see
Oudekraal
2
,
paras 75 – 81.
[79]
See
Motsepe
v Commissioner for Inland Revenue Services
[1997]
ZACC 3
;
1997 (2) SA 897
(CC) para 32.