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[2013] ZAGPPHC 550
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Central African Road Services (Pty) Ltd v Cross-Border Road Transport Agency and Another (60113/2013) [2013] ZAGPPHC 550 (1 November 2013)
CASE
NO: 60113/2013
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
PRETORIA 01
NOVEMBER 2013
BEFORE THE
HONOURABLE MADAM JUSTICE HEATON-NICHOLLS
In the matter
between:
CENTRAL AFRICAN
ROAD SERVICES (PTY)
LTD
.................................................................
Applicant
And
CROSS-BORDER ROAD
TRANSPORT
AGENCY
.............................................................
1
st
Respondent
THE MINISTER OF
TRANSPORT
......................................................................................
2
nd
Respondent
HAVING HEARD
counsel(s) for the party(ies) and having read the documents filed of
record
IT IS ORDERED
1. THAT the period
of 6 (six) months contemplated in paragraph 7 of the order handed
down by this Court on 15 February 2013 under
case number 32238/2011
lapsed at midnight on 14 February 2013.
2. THAT the order of
invalidity in paragraph 6 oftheorder handed down by this Court on 15
February 2013 under case number 32238/2011
accordingly came into
operation with full retrospective effect at midnight on 14 August
2013.
3. THAT until
such time as the second respondent may promulgate new
constitutionally valid regulations amending the permit
fees set out
in the Regulations Promulgated Cross-Border Road Transport
Regulations, 1998, published by Government Notice No: R.
464 of 3
April 1998, as amended by Government Notice Nos. R. 464 of August
1999, R. 682 of July 2000 and R. 677 of 2 June 2003
(the existing
regulations) the permit fees payment by cross border road transport
operators are those set out in the existed regulations.
4. THAT the
respondents pay the costs of the application except for the
applicant's costs of drafting the notice of motion and founding
affidavit which are disallowed.
BY THE COURT
REGISTRAR
Att:
MARIUS SWART ATT.
HIGH COURT TYPIST:
EM
iAfrica
Transcriptions (Pty) Limited
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION - PRETORIA
CASE
NO
: 60113/2013
DATE
:
2013-11-01
In the matter
between
CENTRAL AFRICAN
ROAD SERVICES (PTY)
LTD
.................................................................
Applicant
And
CROSS-BORDER
& ROAD TRANSPORT
AGENCY
.........................................................
1
st
Respondent
MINISTER OF
TRANSPORT
.................................................................................................
2
nd
Respondent
JUDGMENT
Nicholls,
J
:
[1]
On the 15 February 2013, the applicant, a road transportation company
involved in cross border transportation, was granted an
order by
Makgoka J in the following terms:
1. That the 2011
Cross Border Road Transport amendment regulations published in the
Government notice number R 284, published on
the 31 March 2011, in
terms of the Cross Border Transport Act 4 (1998) (for Regulations)
but published in a manner inconsistent
with Section 6(3) of the
Republic of South Africa, Constitution Act 108 of 1996 (the
Constitution), and were invalid for the period
between 1 April 2011
and 28 October 2011.
2.
That the invalidity period referred to in 1 above
,
shall have no effect
on the permit fees and or penalties paid, during that period in terms
of the regulations.
3. That the 1
st
Respondent (The Minister) and the 2
nd
Respondent (The
Agency) have failed to comply with their constitutional obligations
to ensure procedural fairness in the publication
and promulgation
regulations.
4. That the 2
nd
Respondent (The Agency) has failed in its constitutional duty to
comply with its duty to facilitate a proper public comment before
publishing the regulation.
5. That the Board
of the Agency has failed in its statutory duty to properly consider
the draft regulations for the sake of consulting
with the Minister.
6.
That the regulations
are, as a consequence promulgated in a manner that is inconsistent
with the provisions of the promotion of
the Administrative Justice
Act (3) (2000) and Section 33 of the Constitution and are therefore
invalid.
7.
That the order declaring invalid
the regulations is suspended for a period of six (6) months to enable
the Agency and the Minister
to republish the regulation and
thereafter to receive and consider public comments.
8.
That the
Applicant’s constitutional challenge relating to the
faxation
or money bill is dismissed.
9. That the
respondents are to pay 80% of the applicants costs occasioned on 5
March 2012, which the respondents are liable to pay
100%.
[2]
On the 1 October 2013 the
appiicant brought an urgent application directing the 1
st
respondent to issue certain road transport permits against payments
of R1. 690.00 per country. (This is the amount payable in terms
of
the 1998 regulations as opposed to the 2011 regulations which
increased the fees by 250%). An order was granted in terms of
Part A
of the application that the above order operate as an interim order
pending the final adjudication of part B. The matter
now comes before
court for the hearing of part B.
[3]
In Part B the applicant seeks a declaratory order that the 6 months
contemplated in paragraph 7 of the order of the 15 February
2013
lapsed at midnight on the 14 August 2013; that the order of
invalidity in paragraph 6 of the order of 15 February 2013 came
into
operation with full retrospective effect at midnight on the14 August
2013. Further, until such time that the 2
nd
respondent may promulgate new constitutionally valid regulations
amending the permit fee, the fees payable by Cross Border Road
Transport operators are those set out in the existing regulations.
[4] It is common
cause that the 6 month period referred to in the order of 15 February
2013 lapsed at midnight on the 14 August
2013 and that in order to
extend the 6 month period, an application for extension would have
had to have been made within the 6
month period. It is also common
cause that no such application for extension was made.
[5]
The Constitutional court has held that an application for the
extension of an order can only be made during the period of
suspension
and not after this period has lapsed.
1
The rationale behind this is that a court cannot retrospectiveiy
extend a suspension order which no longer exists.
[6] The respondents’
case on the merits, is that last Monday they filed an application for
leave to appeal against the judgment
and order of 15 February 2013.
Therefore, they argue that Rule 49(11) of the Uniform Court of Rules
is applicable. Rule 49(11)
provides that an application for leave to
appeal suspends the operation of the order pending the outcome of the
decision.
[7]
The Constitutional Court dealt with precisely the same point in
Minister
of Health v New Clicks South Africa (PTY) Limited
2
.
In that case the Minister of Health had sought leave to appeal
against a judgement of the Supreme Court of Appeal setting aside
the
regulations she had published relating to pricing systems for
medicines and related substances. She then approached the
Constitutional
court seeking an urgent order declaring that the
judgment and order of the Supreme Court of Appeal was urgently
suspended upon
the bringing of the application for leave to appeal.
[8] At paragraphs 15
and 16 the Court held that:
“
15.
Section 2 of the Constitution provides that:
"This
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations
imposed by it
must be fulfilled.’’
Any
law inconsistent with the Constitution is therefore invalid. When a
court considers and upholds a challenge to the validity
of a law, it
then declares the law to be invalid, but the law’s fundamental
invalidity flows from its inconsistency with
the Constitution, not
from the court order. As this Court held in
Ferreira v
Levin NO;
8
“
The
Court’s order does not invalidate the law; it merely declares
it to be invalid. It is very seldom patent, and in most
cases is
disputed, that pre-constitutional laws are inconsistent with the
provisions of the Constitution. It is one of this Court's
functions
to determine and pronounce on the invalidity of laws, including Acts
of Parliament. This does not detract from the reality
that
pre-existing laws either remained valid or became invalid upon the
provisions of the Constitution coming into operation. In
this sense
laws are objectively valid or invalid depending on whether they are
or are not inconsistent with the Constitution. The
fact that a
disputa concerning inconsistency may only be decided years
afterwards, does not affect the objective nature of the
invalidity.”
“
16.
The common law rule, that the execution of a judgment is suspended
pending an appeal has no application to declarations of
constitutional invalidity of legislation.
If
a law is objectively invalid, a declaration of invalidity made by a
competent court that is subsequently set aside on appeal
does not
validate the law. For the same reason an appeal against the
declaration of constitutional invalidity does not breathe
life into
the law. The objective validity or any validity of the law will
ultimately be determined at the end of the appeal process.
This does
not mean, however that courts have no power to temper the effects of
constitutional invalidity made pending the finalisation
of the appeal
process."
3
[9] The
Constitutional Court went on to say that ordinarily the invalidity
would take effect from the date of promulgation of law
but the effect
can be ameliorated by Section 172(1}(b) of the Constitution which
empowers the court to suspend the declaration
of invalidity for a
period if it is just and equitable to do so. This is precisely what
this court did when granting the order
of 15 February 2013: it
tempered the effect of the declaration of invalidity by suspending
the order for 6 months, to allow for
the necessary consultations to
take place. Unfortunately since February 2013, the first respondent
has done nothing further to
bring its regulations in line with
constitutional requirements. It is therefore not open to the
respondent to come at this stage
and ask for relief.
Not surprisingly,
counsel for the respondent could not elaborate on what possible order
this court could give, other than to refuse
the granting of the
declaratory order.
[10] It is correct
that the notice of motion did not provide the first respondent an
adequate opportunity to file an answering affidavit
to part B.
Counsel for the applicant conceded that it was irregular in this
respect. The question then arises what the effect of
such an
affidavit would be. Counsel for the respondent stated that the
affidavit would show the undue hardship that would be suffered
by the
first respondent should the order of invalidity be granted. This
point was also raised in the answering affidavit to the
urgent
application.
[11] I am
sympathetic to the plight of the respondent. However, irrespective of
what an affidavit from the respondent may contain,
my hands are tied.
It can in no way affect the outcome of the application. The alleged
hardship cannot breathe life into an invalid
law. I am not convinced
that it was even necessary for the applicant to bring this
application as the invalidity would automatically
kick in after the
expiry of the 6 month period, as a matter of law. For this reason
even a postponement to file an answering affidavit
would serve no
purpose.
[12] The order of
Makgoba J, of the 15 February 2013, must stand unless an appeal court
sets it aside. The 6 month suspension period
has expired. The
regulation is now invalid.
[13] I now turn to
the question of costs. Even though to file an answering affidavit
would serve no purpose at this stage, the court’s
disapproval
towards the applicant in failing to allow sufficient time for the
answering affidavit can be reflected in the costs
order. Courts
should frown upon irreguiar papers. In the circumstances, I will
disallow all costs relating to the drafting of the
notice of motion
and the founding affidavit.
In the result I make
the following order.
ORDER
1. The period of 8
months contemplated in paragraphs 7 of the order handed down by this
court on the 15 February 2013, under case
number 32238/2011 lapsed at
midnight on the 14 August 2013.
2. The order of
invalidity in paragraph 6 of the order, handed down by this court on
the 15 February 2013, under case number 32238/2011
accordingly came
into operation with full retrospective effect at midnight on the 14
August 2013.
3.
Until such time as the 2
nd
respondent may promulgate new constitutionally valid regulations
amending the permit fees set out in the Cross Border Road
Transportation
Regulations 1998, published under Government Notice No
R 464 of 3 Aprii 1998, as amended by the Government Notice Nos R998
of 13
August 1991, R682 of 7 July 2000 and R677 of 2 June 2013 (the
existing regulations), the permit fees payable by Cross Border Road
Transport Operations are those set out in the existing regulations.
4. That the
respondents pay the costs of this application jointly and severally
except for the applicants’ cost of drafting
the notice of
motion and the founding affidavit which are disallowed.
1
ex
parte
Minister
of Social Development and Others
[2006] ZACC 3
;
2006
(4) SA 309
(CC);
Minister
of Justice v Ntuli
[1997] ZACC 7
;
1997
(3) SA 772
(cc),
2
Minister
of Health v New Clicks South Africa (PTY) Limited
CCT
59/04, judgment delivered on 30 September 2005
3
Minister
of Health v New Clicks South Africa (PTY) limited,
case
CCT 59/04,
paragraph
16