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[2014] ZAGPPHC 878
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Cross-Boarder Road Transport Agency and Another v Central African Road Services (Pty) Ltd (60113/2013) [2014] ZAGPPHC 878 (18 June 2014)
CASE NO: 601 13/2013
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
PRETORIA 18 June
2014
BEFORE THE
HONOURABLE MADAM JUSTICE HEATON-NICHOLLS
In the matter
between:
CROSS-BOARDER ROAD
TRANSPORT
AGENCY
..........................................................
1ST
APPLICANT
THE MINISTER OF
TRANSPORT
......................................................................................
2ND
APPLICANT
And
CENTRAL AFRICAN ROAD
SERVICES (PTY)
LTD
............................................................
RESPONDENT
HAVING
HEARD counsel for the parties and having read the application for
leave to appeal against the judgment of the Honourable
Justice
HEATON-NICHOLLS
delivered
on
01 NOVEMBER
2013
.
IT IS ORDERED
1. THAT the
application for leave to appeal is dismissed with costs;
2. THAT the
appellant is to pay the costs of the respondent’s application
in terms of Rule 30.
BY THE COURT
REGISTRAR
Attorney: MARIUS
SWART
IN
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO.
2013/60113
In the matter
between:
CROSS-BOARDER
ROAD TRANSPORT
AGENCY
..........................................................
First
Applicant
THE MINISTER OF
TRANSPORT
...................................................................................
Second
Applicant
And
CENTRAL AFRICAN
ROAD SERVICES (PTY)
LTD
.............................................................
Respondent
JUDGMENT
NICHOLLS. J
[1] This matter
pertains to regulations promulgated by the Cross Border Road
Transport Agency (“CBRTA”) which purported
to increase
the permit fees payable by cross border road transport operators by
250%. On 15 February 2013 Makgoka J gave an order
declaring the
regulations constitutionally invalid, which invalidity was postponed
for a period of 6 months to enable CBRTA to
republish the regulations
and to receive public comment. The CBRTA did nothing during the 6
month period. In the May 2014 the Minister
of Transport published new
regulations.
[2] Pursuant to an
application for a declarator by one of the cross border road
operators, Central African Roads Services (Pty)
Ltd (“CARS”),
I granted an order on 1 November 2013 that the 6 month period
referred to in Makgoka’s order lapsed
at midnight on 14 August
2013 and accordingly the order of invalidity came into operation with
full retrospective effect at midnight
on 14 August 2013. CBRTA seeks
leave to appeal against this order. CARS launched a Rule 30
application that the application for
leave to appeal was irregular
and should be set aside. The application for leave to appeal has
since been amended and the only
remaining issue in this regard is the
costs of the Rule 30 application.
[3] Essentially the
grounds for appeal are twofold. The first is that I erred in finding
that the order of invalidity operated with
full retrospective effect.
Instead I should have found that the effective date of invalidity was
15 August 2013. In argument it
was submitted that thus court had no
jurisdiction to interpret the order of Makgoka J which was clear and
unambiguous. In particular
the court erred in granting relief that
qualified, varied or supplemented the order of Makgoka J by ordering
that the invalidity
had full retrospective effect. The second ground
is that by refusing CBRTA a postponement in which to file an opposing
affidavit
to Part B, they were precluded from advancing ways in which
the effect of the invalidity could be ameliorated.
[4]
There seems to have been a typographical error in the Registrar’s
office in respect of the last line of paragraph 1 of
my order.
My
judgment
states the date on which Makgoka J’s order lapsed was midnight
14 August 2013. Instead the date typed in the order
is 14 February
2013. Insofar as it is necessary paragraph 1 of my order is hereby
amended by the substitution of the words 14 February
2013 with the
words 14 August 2013.
[5]
I will deal with the question of retrospectivity. Once a court
declares a law invalid, it is not the court’s order which
invalidates the law but the law itself is objectively valid or
invalid depending on whether or not it is consistent with the
Constitution.
1
The
consequence of the doctrine of objective invalidity is that a
pre-existing law which is declared invalid becomes invalid from
the
date of the promulgation of the law or the date upon which the
Constitution came into effect. This is notwithstanding that
there may
be a period during which the court postpones or suspends the
invalidity and notwithstanding the fact that the declaration
of
invalidity is made at a later stage.
2
[6] The appellant
correctly pointed out that Makgoka J’s order was a matter of
simple calculation and not of interpretation.
However, what the
appellant failed to appreciate was that by declaring it to be of full
retrospective effect, this was not a matter
of interpretation but
merely a statement of the legal consequences flowing from the Makgoka
J’s declaration of invalidity.
In light of the various
Constitutional Court judgments on this aspect there is no prospect of
another court coming to a different
conclusion and this ground of
appeal must accordingly fail.
[7] With regard to
the second ground of appeal that CBRTA was precluded from showing the
resultant financial hardship the declaration
of invalidity would
have, CBRTA argues that the court misdirected itseit in assuming that
amelioration could only amount to revival
of the regulations. Counsel
for CBRTA stated that the intention was not to breathe life into an
invalid law but rather to be afforded
the opportunity to demonstrate
possible ways to ameliorate this hardship. My refusal to allow
further affidavits amounted to a
failure to determine appropriate
relief that was just and equitable in terms of section 172 (1) of the
Constitution.
[8] This submission
is based on a misconception that I can make an order regarding the
fees to be paid to CBRTA despite the fact
that the 6 month period of
suspension has expired. It is not within this court’s power to
extend the period of suspension
of invalidity once the 6 month period
has lapsed
3
. The Constitutional Court has made it clear that the power to
ameliorate survives only as long as the suspension period. Once
the
regulation is found to be objectively constitutionally invalid and
once the 6 month suspension period has lapsed, there is
nothing that
this, or any other court, could conceivably do to ameliorate the
effect of invalidity. The old regulation is the only
valid existing
regulation. This ground of appeal has no merit.
[9] In respect of
the costs of the Rule 30 application there is no reason why CARS
should not get these costs. They have been substantially
successful.
In the result I make
the following order:
1. The application
for leave to appeal is dismissed with costs.
2. The appellant is
to pay the costs of the respondent’s application in terms of
Rule 30.
C H NICHOLLS
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL
DIVISION
JOHANNESBURG
Appearances
Counsel of the
applicant : Adv. E.C. Labuschagne SC
Adv. J.Motepe
Instructing
Attorneys : Savage Jooste & Adams Inc.
Counsel for the
defendant : Adv. C. Van der Merwe
Instructing
Attorneys : Marius Swart Attorneys
Date of hearing: 11
June 2014
Date
of judgement : 18 J
une
2014
1
Ferreira
v
Levin
NO and Others; Vryenhoek and Others v Powell NO and Others
1996
(1) SA 984
(DC) paragraph
29-30
2
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
1996
(1) SA 984
(DC);
'Minister
of Health and Others v New Ciicks South Africa (Pty) Ltd
Case
CCT 59/04 delivered on 30 September 2005 paragraphs 15 -17 ;
National
Director of Public Prosecutions v Mohamed NO and Others
2003
(4) SA 1
(CC)
3
Ex parte Minister of Social Development and Others
[2006] ZACC 3
;
2006 (4) SA 309
(CC) ; Minister of Health and Others v New Clicks South Africa (Pty)
Ltd (supra); ex parte Minister of Social Development and
Others
[2006] ZACC 3
;
2006
(4) SA 309
(CC) paragraphs 36-40