Brief Summary

Constitutional Law — Administrative action — Tolling policy — Opposition to Urban Tolling Alliance sought interim interdict against SANRAL's tolling of Gauteng roads pending review of decisions to declare roads as toll roads and grant environmental approvals — High Court granted interim interdict — National Treasury and SANRAL appealed directly to Constitutional Court — Court considered whether it was in the interests of justice to hear the appeal and the correctness of the High Court's order — Court held that the High Court was correct in granting the interim interdict, thereby upholding the respondents' challenge to the tolling policy pending final determination of the review application.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an urgent application for leave to appeal directly to the Constitutional Court against an interim interdict granted by the North Gauteng High Court. The interim interdict restrained the implementation of electronic tolling (e-tolling) on certain Gauteng freeways pending the determination of a judicial review application.

The principal applicants were the National Treasury and the South African National Roads Agency Limited (SANRAL), joined by several members of the Executive responsible for transport and environmental matters. The principal respondent was the Opposition to Urban Tolling Alliance (OUTA), joined by other civil and consumer bodies. A further entity, the Road Freight Association, sought to intervene in the Constitutional Court proceedings.

The procedural history was that OUTA and others launched urgent proceedings in March 2012 in the High Court for interim relief pending a review. On 28 April 2012, Prinsloo J granted an interim interdict prohibiting SANRAL from levying and collecting tolls pending the review. The National Treasury and SANRAL then sought direct and urgent appellate relief in the Constitutional Court, contending that the interim interdict caused immediate and ongoing harm to public finances and impermissibly intruded into the Executive’s constitutionally protected domain.

The general subject matter concerned the lawfulness and interim suspension of steps taken towards implementing a significant public infrastructure funding mechanism, particularly whether a court may, pending review, temporarily restrain the exercise of statutory powers connected to national executive fiscal and transport policy in circumstances alleged to implicate separation of powers.

2. Material Facts

In July 2007, Cabinet approved the Gauteng Freeway Improvement Project (GFIP), a substantial upgrade of roads in Gauteng. The project was implemented through SANRAL, an organ of state established under the South African National Roads Agency Limited and National Roads Act 7 of 1998. SANRAL’s functions include the planning, construction, management, maintenance, and financing arrangements for national roads, which it must perform within the framework of government policy.

The first phase of the GFIP was completed. It involved major highway upgrades and the erection of gantries fitted with an electronic open road tolling system. SANRAL incurred approximately R21 billion debt to finance the first phase, and Government guaranteed a substantial portion of that debt. It was common cause that the upgraded roads were in daily use and that the tolling infrastructure was essentially ready for implementation, subject to applicable statutory steps.

During 2008, SANRAL, acting under section 27 of the SANRAL Act and with the Minister’s approval, declared identified roads within Gauteng as toll roads. Separately, between November 2007 and February 2008, the Director-General of Water and Environmental Affairs granted certain environmental approvals in terms of section 24 of the National Environmental Management Act 107 of 1998 for aspects of the project.

Nearly four years later, on 23 March 2012, OUTA and others launched an urgent application in the High Court for an interim interdict restraining SANRAL from levying and collecting tolls pending the final determination of their application to review and set aside (a) SANRAL’s decisions to declare roads as toll roads, (b) the Minister’s approval of those declarations, and (c) the environmental authorisations. The High Court granted the interim interdict on 28 April 2012.

Before the Constitutional Court, it was also accepted that the Minister had not yet issued operative tariff notices at the relevant time because earlier tariff notices had been withdrawn. The Constitutional Court treated this as material to the alignment between the impugned decisions and the alleged harm said to flow from imminent tolling.

The court also accepted, on the uncontested material before it (including updates in additional affidavits), that the interim interdict had immediate financial consequences for SANRAL’s funding model and the National Treasury’s budgeting, including the need for interim funding allocations and consequences for SANRAL’s credit rating and bond issuance activities.

3. Legal Issues

The central legal questions were, first, whether it was in the interests of justice for the Constitutional Court to entertain an urgent direct appeal against an interim interdict granted by the High Court. This required consideration of the Constitutional Court’s appellate access framework under the Constitution and its Rules, as well as the policy considerations generally weighing against appeals from non-final interim orders.

Second, if leave were granted, the main question was whether the High Court was correct in granting the interim interdict under the established requirements for interim interdictory relief. This dispute was not directed at finally deciding the review grounds, but at evaluating whether the interim restraint was justified pending the review.

The dispute therefore involved a combination of legal questions (the proper approach to interim interdicts where statutory power and separation of powers are implicated; appealability and the interests of justice standard) and an application of law to fact (the presence of irreparable harm; the balance of convenience; and the extent to which the interdict intruded into executive and budgetary functions). It also required an evaluative assessment of separation-of-powers harm as part of the balance of convenience analysis.

4. Court’s Reasoning

The Court dealt first with preliminary procedural matters. It refused the Democratic Alliance’s late application to be admitted as amicus curiae, holding that although lateness was condoned, the proposed submissions were not materially distinct from those of the parties and, in substance, reflected a partisan alignment better suited to intervention as a party rather than neutral assistance to the Court. The Court also dismissed the Road Freight Association’s application to intervene, holding that it had not shown a direct and substantial interest in the appeal before the Court and that its proposed constitutional attack on the SANRAL Act raised a new cause of action not previously in issue and not appropriately entertained for the first time in this appeal. The Court admitted additional affidavits because they bore on ongoing harm and were unopposed.

On the question of leave to appeal, the Court held that the appeal raised constitutional matters, including the role of PAJA-based review in relation to executive policy and, prominently, whether the interim interdict impermissibly trenched on separation of powers. Although appellate courts are generally reluctant to hear appeals against interim orders lacking final effect, the Court emphasised that the operative criterion is the interests of justice, which is flexible and context-sensitive. Relevant considerations include whether the interim order has immediate and substantial effects and whether it causes serious, ongoing, and irreparable harm, including institutional harm implicating separation of powers. The Court found that the interdict prevented SANRAL from exercising statutory powers and produced immediate consequences for national finances and budgeting, including recurring funding needs and implications for sovereign debt management. It held that urgency persisted notwithstanding a short political postponement of e-tolling, because a court order imposing a potentially lengthy restraint was qualitatively different from a short political delay.

Turning to the merits, the Court stressed that it was not appropriate to decide the cogency of the review grounds, particularly in light of the Rule 53 review process and the possibility of supplementation and factual disputes that would be better handled by the review court. The description of the review grounds was confined to assessing whether interim relief was properly granted.

The Court accepted that the High Court applied the established test for interim interdicts drawn from Setlogelo v Setlogelo and refined in Webster v Mitchell. It declined to create an entirely new test, but held that the Setlogelo framework must be applied in a manner consistent with the Constitution, including the need to consider whether interim relief would intrude into the constitutionally protected terrain of other branches of government. The Court emphasised that, in terms of longstanding common law principles (including Gool v Minister of Justice and Another), courts do not readily interdict the exercise of statutory powers absent mala fides, and such relief is ordinarily reserved for exceptional circumstances where a strong case is made out. Under the constitutional order, the separation of powers dimension intensifies this caution: an interim restraint on statutory power pending final review should be granted only in the clearest of cases, with careful attention to the separation-of-powers consequences.

In assessing the High Court’s finding on a prima facie right, the Court identified conceptual difficulties. It reasoned that the “right” that must be shown for interim interdict purposes is not merely the general entitlement to approach a court for review, but a right that would suffer irreparable harm absent interim protection. It also noted an important misalignment: the feared harm (payment of toll charges) would not flow directly from the 2008 toll-road declarations and approvals impugned in the review, because a further administrative step (publication of tariff notices) was required and had not yet occurred. Nevertheless, the Court did not finally decide whether a prima facie right was established, proceeding instead on the assumption (without deciding) that it had been.

On irreparable harm, the Court questioned the High Court’s finding that harm to motorists would be irreparable, noting that if tolling were later set aside, motorists could potentially pursue an enrichment-type recovery claim and there was no clear basis why repayment could validly be resisted. This undermined the conclusion that payment of tolls would necessarily be irreparable.

The decisive focus was the balance of convenience, which the Court held must incorporate the harm to motorists as well as the harm to SANRAL, the National Treasury, and the Executive’s budgetary and fiscal responsibilities. The Court accepted that some hardship to motorists was asserted, but it stressed that, on any funding model, the public would bear the cost of road upgrades, meaning that the alleged harm could not be assessed in isolation from the reality of unavoidable public contribution to the project’s financing. It also found that the High Court did not give adequate weight to uncontested evidence regarding the distributional impact of tolling (including evidence that public transport users would be exempt and that tolling burdens would fall predominantly on more affluent users).

Crucially, the Court held that the High Court failed to engage with the government applicants’ extensive submissions on separation of powers and the institutional consequences of restraining SANRAL from executing statutory powers connected to a national executive funding policy. The interdict, on the evidence, risked forcing ongoing budgetary reallocations, implicating Parliament’s appropriation role and the National Treasury’s fiscal management, and created material financial and credit-rating consequences for SANRAL. The Court considered the High Court’s silence on separation-of-powers implications to be a serious deficiency in the balancing exercise, given that the interim interdict effectively stalled the implementation of an unchallenged statutory framework and an executive policy choice regarding the ordering of public resources.

Froneman J concurred in the outcome but articulated a slightly different emphasis. He considered that temporary interdicts that potentially implicate national separation of powers are exceptional and warrant a more stringent approach, both when considering whether to grant leave to appeal and when evaluating the propriety of the interdict. He reasoned that the respondents’ unreasonableness attack implicitly depended on comparing tolling to alternative funding mechanisms (notably fuel levies), but that SANRAL was required to act within government policy, which excluded those alternatives, and that the lawfulness of that policy was not attacked on review. On this approach, the interim interdict effectively undermined a lawful executive policy decision, and the appropriate arena for contesting that policy was political rather than judicial.

5. Outcome and Relief

The Constitutional Court granted leave to appeal, upheld the appeal, and set aside the High Court’s interim interdict of 28 April 2012 restraining SANRAL from levying and collecting tolls.

The Court ordered that costs are to be costs in the review, meaning the question of costs was deferred for determination in the pending review proceedings rather than finally determined in the appeal.

Cases Cited

International Trade Administration Commission v SCAW South Africa (Pty) Limited [2010] ZACC 6; 2012 (4) SA 618 (CC); 2010 (5) BCLR 457 (CC).

Machele and Others v Mailula and Others [2009] ZACC 7; 2010 (2) SA 257 (CC); 2009 (8) BCLR 767 (CC).

President of the Republic of South Africa and Others v United Democratic Movement (African Christian Democratic Party and Others intervening; Institute for Democracy in South Africa and Another as Amici Curiae) [2002] ZACC 34; 2003 (1) SA 472 (CC); 2002 (11) BCLR 1164 (CC).

Minister of Health and Others v Treatment Action Campaign and Others (No. 1) [2002] ZACC 16; 2002 (5) SA 703 (CC); 2002 (10) BCLR 1075 (CC).

Glenister v President of the Republic of South Africa and Others [2008] ZACC 19; 2009 (1) SA 287 (CC); 2009 (2) BCLR 136 (CC).

Doctors for Life International v Speaker of the National Assembly and Others [2006] ZACC 11; 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC).

Pharmaceutical Manufacturers Association of South Africa and Another: In Re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC).

Albutt v Centre for the Study of Violence and Reconciliation, and Others [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5) BCLR 391 (CC).

Gory v Kolver NO and Others (Starke and Others intervening) [2006] ZACC 20; 2007 (4) SA 97 (CC); 2007 (3) BCLR 249 (CC).

Minister of Public Works and Others v Kyalami Ridge Environmental Association and Another (Mukhwevho Intervening) [2001] ZACC 19; 2001 (3) SA 1151 (CC); 2001 (7) BCLR 652 (CC).

Ex Parte Institute for Security Studies: In Re S v Basson [2005] ZACC 4; 2006 (6) SA 195 (CC).

Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC); 1997 (7) BCLR 851 (CC).

Democratic Alliance v President of the Republic of South Africa and Others 2012 (1) SA 417 (SCA).

Setlogelo v Setlogelo 1914 AD 221.

Webster v Mitchell 1948 (1) SA 1186 (WLD).

Gool v Minister of Justice and Another 1955 (2) SA 682 (CPD).

Molteno Brothers and Others v South African Railways and Others 1936 AD 321.

Cronshaw and Another v Coin Security Group (Pty) Ltd [1996] ZASCA 38; 1996 (3) SA 686 (SCA).

Smith v Inner London Education Authority [1978] 1 All ER 411.

RJR- MacDonald Inc v Canada [1994] 1 R.C.S. 311.

Opposition to Urban Tolling Alliance and Others v The South African National Roads Agency Ltd and Others [2012] ZAGPPHC 63.

Legislation Cited

Constitution of the Republic of South Africa, 1996 (including section 33, section 167(6)(b), and section 239).

South African National Roads Agency Limited and National Roads Act 7 of 1998 (including sections 2, 25(1), 27, and 34(1)).

National Environmental Management Act 107 of 1998 (including section 24).

Promotion of Administrative Justice Act 3 of 2000 (including section 6).

Supreme Court Act 59 of 1959 (including section 20(1)).

Rules of Court Cited

Rules of the Constitutional Court (including Rule 10 and Rule 19).

Uniform Rules of Court (including Rule 49(11) and Rule 53).

Held

The Constitutional Court held that it was in the interests of justice to entertain a direct and urgent appeal against the interim interdict because the interdict had immediate and ongoing consequences of substantial magnitude, including significant implications for public finance and potential intrusion into the Executive’s constitutionally protected policy and budgeting terrain.

On the merits of the interim interdict, the Court held that although the Setlogelo framework remains applicable, it must be applied consistently with the Constitution, including due regard to separation of powers. The High Court’s assessment of the balance of convenience was materially deficient because it failed to consider, or failed adequately to weigh, the separation-of-powers implications and the institutional and fiscal harm of restraining SANRAL from exercising statutory powers within a policy framework adopted by the Executive and implemented through legislation.

The Court accordingly set aside the interim interdict, leaving the substantive review to proceed in the High Court, and ordered that costs in the appeal would be costs in the review.

LEGAL PRINCIPLES

The judgment applied the principle that appeals against interim orders are generally disfavoured, but the decisive inquiry in the Constitutional Court is whether hearing the appeal is in the interests of justice, which includes consideration of the order’s immediate effect, the seriousness and irreparability of harm, and whether the order implicates constitutional concerns such as separation of powers.

It reaffirmed that the requirements for interim interdicts, as formulated in Setlogelo v Setlogelo and refined in Webster v Mitchell, remain a practical guide, but must be applied within the constitutional normative framework. In particular, when interim relief would restrain the exercise of statutory power by an organ of state, courts must exercise special caution and should grant such relief only exceptionally, traditionally requiring a strong case, and under the constitutional order must carefully consider whether the interdict would intrude into the lawful domain of the Executive or Legislature.

The judgment emphasised that the balance of convenience analysis must account not only for private or individual prejudice, but also for institutional and constitutional harm, including separation-of-powers harm where judicial restraint may disrupt the lawful performance of executive functions related to public resource allocation, fiscal management, and policy implementation.

National Treasury and Others v Opposition to Urban Tolling Alliance and Others (CCT 38/12) [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC) (20 September 2012)