Democratic Alliance v President of South Africa and Others (18392/13) [2014] ZAWCHC 31; [2014] 2 All SA 569 (WCC); 2014 (7) BCLR 800 (WCC); 2014 (4) SA 402 (WCC) (13 March 2014)

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[2014] ZAWCHC 31
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Democratic Alliance v President of South Africa and Others (18392/13) [2014] ZAWCHC 31; [2014] 2 All SA 569 (WCC); 2014 (7) BCLR 800 (WCC); 2014 (4) SA 402 (WCC) (13 March 2014)

IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 18392/13
DATE:
13 MARCH 2014
In
the matter between:
DEMOCRATIC
ALLIANCE
.....................................................................................
APPLICANT
And
THE PRESIDENT OF SOUTH
AFRICA
...............................................
FIRST
RESPONDENT
THE SPEAKER OF THE
NATIONAL ASSEMBLY
........................
SECOND
RESPONDENT
THE CHAIRPERSON OF THE
NATIONAL
COUNCIL OF
PROVINCES
................................................................
THIRD
RESPONDENT
THE MINISTER OF
TRANSPORT
...............................................
FOURTH
RESPONDENT
THE SOUTH AFRICAN NATIONAL
ROADS
AGENCY
................................................................................
FIFTH
RESPONDENT
NATIONAL
TREASURY
..................................................................
SIXTH
RESPONDENT
Coram:
ROGERS J
Heard:
4 & 5 MARCH 2014
Delivered:
13 MARCH 2014
JUDGMENT
ROGERS J:
[1]
The question in this
case is whether the Transport Laws and Related Matters Amendment Act
3 of 2013 (‘the Amendment Act’)
required, for its valid
enactment, compliance with the procedure laid down in s 76 of
the Constitution or whether, as occurred,
enactment in accordance
with s 75 sufficed.
[2]
The Amendment Act was
passed primarily so as to facilitate the electronic monitoring of
traffic through toll plazas and the electronic
collection of the
tolls. The timing of its enactment was related to the publicly
controversial introduction of electronic tolling
as part of the
Gauteng Freeway Improvement Project (‘GFIP’). This
controversy, in its legal aspects, led to the judgment
of the
Constitutional Court in
National
Treasury & Others v Opposition to Urban Tolling Alliance &
Others
2012 (6) SA
223
(CC), where the Constitutional Court set aside an interim
interdict granted by Prinsloo J prohibiting the implementation of
electronic
tolling pending the outcome of a review ([2012] ZAGPPHC
63); and the subsequent judgment of the Supreme Court of Appeal in
Opposition to Urban
Tolling Alliance & Others v The South African National Roads
Agency Limited & Others
[2013]
ZASCA 148
, where the Supreme Court of Appeal upheld the judgment of
Vorster J dismissing the review contemplated in the proceedings
before
Prinsloo J ([2012] ZAGPHC 323). I shall refer to the aforesaid
litigation as the
OUTA
case.
[3]
The Transport Law and
Related Matters Amendment Bill was published in the latter part of
2012 together with an explanatory memorandum
which stated that the
bill should be dealt with in accordance with the procedure laid down
by s 75 of the Constitution. The
resultant legislation (the
Amendment Act) was approved by Parliament on 22 May 2013. The
President assented to the Act on 21 September
2013. The Act was
promulgated in the
Government
Gazette
on 26
September 2013. In terms of s 8 of the Amendment Act it was to
be brought into operation on a date determined by the
President by
proclamation in the
Gazette.
By a proclamation published in the
Gazette
on 9 October 2013 (the date on which the Supreme Court of Appeal
handed down its judgment in the
OUTA
case) the President
fixed 9 October 2013 as the date on which the Amendment Act would
come into operation except for ss 3(b)
and 3(c) thereof. The
latter sub-sections have not yet been brought into operation.
[4]
On 6 November 2013 the
applicant in the present case, the Democratic Alliance (‘the
DA’), launched an urgent application
for a declaration that the
Amendment Act is invalid for want of compliance with s 76 of the
Constitution. The notice of motion
stated that the application would
be moved on 10 December 2013. The respondents cited in the notice of
motion were the President,
the Speaker of the National Assembly, the
Chairperson of the National Council of Provinces (‘NCOP’),
the Minister of
Transport and the South African National Roads Agency
Limited (‘SANRAL’). All these respondents have opposed
the application.
In addition, the National Treasury applied for leave
to intervene as the 6
th
respondent, which intervention was not opposed. The Minister of
Finance made the main affidavit on behalf of the National Treasury.

On 9 December 2013 an order was made by agreement postponing the
application for hearing on 4 and 5 March 2014, all issues of costs

being reserved.
Sections
75 and 76 of the Constitution
[5]
Section 75 of the
Constitution deals, according to its heading, with ‘Ordinary
Bills not affecting provinces’. Section
76 by contrast deals
with ‘Ordinary Bills affecting provinces’. A bill is an
‘ordinary bill’ if it is not
a bill amending the
Constitution (governed by s 74). An ordinary bill may be a money
bill, in which case the further provisions
of s 77 apply.
[6]
In terms of s 75(1),
the provisions of that section apply where the National Assembly
passes a bill other than a bill to which
the procedures set out in
s 74 or s 76 apply. In the case of s 75 bills, the
NCOP has a role but it is more limited
than in the case of bills
governed by s 76. A s 75 bill must be referred to the NCOP
which must pass the bill, or pass
it subject to amendments, or reject
it. If the NCOP passes the bill without amendments, the bill must be
submitted to the President
for assent. If the NCOP rejects the bill
or passes it subject to amendments, the National Assembly must
reconsider the bill, taking
into account any amendments proposed by
the NCOP, and may then pass the bill again (either with or without
amendments) or decide
not to proceed with the bill. If the bill is
again passed by the National Assembly, it must be submitted to the
President for assent.
[7]
Section 75(2) sets out
the manner in which the NCOP votes on a bill referred to it in terms
of s 75. Section 75(2) provides
that the usual manner of voting
in the NCOP as set out in s 65 does not apply. The usual manner
of voting as laid down in
s 65 is that each province has one
vote, which is cast on behalf of the province by the head of its
delegation; and that agreement
is reached where at least five
provinces vote in favour of the question. (Since there are nine
provinces, this is a simple majority.)
The varied procedure created
by s 75(2) is the following: each delegate in a provincial
delegation has one vote; at least
one third of the delegates must be
present before a vote may be taken on the question; and the question
is decided by a majority
of the votes cast, subject to the
qualification that, if there is an equal number of votes on each side
of the question, the presiding
delegate must cast a deciding vote.
(In terms of s 61 of the Constitution read with Schedule 3, each
province is entitled
to a delegation comprising ten delegates but
opposition parties are entitled to representation in the delegation.
It is thus notionally
possible that a party with a majority in four
out of nine provinces could, across all nine delegations, muster
sufficient delegates
to constitute a majority in terms of this
special voting regime. Put differently, the procedure created by
s 75(2) is more
likely to result in a majority vote in the NCOP
which accords with the majority in the National Assembly.)
[8]
Sections 76(3), (4) and
(5) specify various kinds of bills that must be dealt with in
accordance with the special procedures laid
down in ss 76(1) and
(2). In the present matter we are concerned only with one of the
kinds of bills specified in s 76(3),
namely a bill which ‘falls
within a functional area listed in Schedule 4’. Schedule 4
lists ‘functional areas
of concurrent national and provincial
legislative competence’. If a bill is of this kind, the
procedure to be followed is
the one prescribed either in s 76(1)
or in s 76(2), depending on whether the bill originates in the
National Assembly
or the NCOP. Where such a bill is passed by the
National Assembly, s 76(1), like s 75(1), requires that the
bill be referred
to the NCOP. However, there are two important
differences, namely [a] regarding the procedure to be followed
where the bill
is rejected by the NCOP or is amended by the NCOP in a
manner which does not find favour with the National Assembly; and [b]
regarding
the manner of voting in the NCOP (see, in general
Ex
Parte President of the Republic of South Africa: In Re
Constitutionality of the Liquor Bill
[1999] ZACC 15
;
2000
(1) SA 732
(CC) para 25, hereafter referred to as
Liquor
Bill
).
[9]
As to the first of
these differences, s 76(1) provides that, if the NCOP rejects
the bill or if the National Assembly declines
to pass the bill as
amended by the NCOP, the bill (together with the amended bill, if
applicable) must be referred to the Mediation
Committee, being a
committee created by s 78 of the Constitution. The Mediation
Committee may agree on the bill as passed
by the National Assembly or
on the bill as amended by the NCOP or on another version of the bill.
If the Mediation Committee cannot
reach agreement on one of these
courses within 30 days of the bill’s referral to it, the bill
lapses unless the National
Assembly again passes the bill but this
time with a supporting vote of at least two-thirds of its members.
[10]
If the Mediation
Committee agrees on the bill as passed by the National Assembly or as
amended by the NCOP, the Committee must refer
the bill or the amended
bill (as the case may be) to the NCOP or the National Assembly (as
the case may be). If the NCOP or National
Assembly passes the bill or
amended bill (as the case may be), it must be submitted to the
President for assent.
[11]
If the Mediation
Committee agrees on a different version of the bill (ie different
both from the form passed by the National Assembly
and by the NCOP),
the bill must be referred both to the National Assembly and to the
NCOP. If they both pass the bill, it must
be submitted to the
President for assent. If, on re-referral to it in terms of this
provision, the NCOP does not pass the bill,
it lapses unless the
National Assembly passes the bill with a supporting vote of at least
two-thirds of its members. If, on re-referral
to it in terms of this
provision, the National Assembly does not pass the bill, the bill
lapses but the National Assembly may still
pass the bill in original
form provided it is supported by a vote of at least two-thirds of its
members.
[12]
As to the second
difference, namely voting, s 76 does not establish a special
voting regime. The result is that voting in the
NCOP is in accordance
with s 65, ie one vote per delegation. This means that a party
with an overall national majority but
with a provincial majority in
only four out of nine provinces would not be able to carry the day in
regard to a s 76 bill.
If on this basis the bill were rejected
by the NCOP and not resolved by the Mediation Committee, the National
Assembly could not
force the legislation through except with a
two-thirds majority.
[13]
In parliamentary
language, the process for determining whether a bill must be passed
in accordance with s 75 or s 76 is
known as ‘tagging’.
The leading judgments of the Constitutional Court on tagging are
Liquor Bill supra
and
Tongoane
& Others v National Minister for Agriculture and Land Affairs &
Others
2010 (6) SA
214
(CC). These cases considered the test for determining whether a
bill should be regarded as one which ‘falls within a functional

area listed in Schedule 4’ for purposes of s 76(3). In the
Liquor Bill
case it was said that any bill whose provisions ‘in substantial
measure’ fall within a functional area listed in Schedule
4
must be dealt with in accordance with s 76. In
Tongoane
Ngcobo CJ, writing
for a unanimous court, upheld this test. I shall need to deal in more
detail with these cases in due course with
a view to determining
precisely what they say in regard to the appropriate test.
The
main Act: Act 7 of 1998
[14]
The provisions of the
Amendment Act on which the DA relies for its s 76 tagging of the
Amendment Act are those which amend
the South African National Roads
Agency Limited and National Roads Act 7 of 1998 (‘the
pre-existing Act’) as it read
immediately prior to the coming
into force of the Amendment Act. In order to understand the
arguments, it is necessary to refer
to certain provisions of the
pre-existing Act.
[15]
The Act deals only with
national roads, not provincial and municipal roads. A national road
is road declared as such by the Minister
in terms of s 40. If an
existing road is to be declared a national road, this can only happen
with the agreement of the Premiers
of the provinces in which the road
is situated. If it is proposed to construct a new road as a national
road, there must be consultation
with the relevant Premiers if the
new road will have substantial impact on traffic flows in those
provinces.
[16]
Section 2 of the
pre-existing Act makes provision for the establishment of SANRAL as a
national roads agency for the Republic ‘for
the purpose of
taking charge of the financing, management, control, planning,
development, maintenance and rehabilitation of the
South African
national roads system’.
[17]
The main functions of
SANRAL are set out in s 25(1). In terms of that sub-section
SANRAL, within the framework of government
policy, is responsible
for, and has been given power to perform, ‘all strategic
planning’ with regard to the South
African national roads
system; all ‘planning, design, construction, operation,
management, control, maintenance and rehabilitation
of national roads
for the Republic’; and ‘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.
[18]
Certain powers,
additional to these main powers and functions, are conferred on
SANRAL by s 26. Among these are (para (f))
‘
to
operate any national road or part thereof as a toll road and levy a
toll on the users of such a road as provided in this Chapter,
and to
collect the toll or have it collected by any authorised person, and
for those purposes to provide, establish, direct, operate
and
maintain toll plazas on a national road, subject to section 27 or
28’.
[19]
The expression ‘toll
road’ is defined in s 1 as meaning ‘any toll road
declared under subsection (1)(a) of
section 27, the declaration of
which is effective in terms of subsection (2) of that section…’.
[20]
The expression ‘toll
plaza’ is defined in s 1 as meaning
‘
a
structure on a toll road where toll is payable in terms of this Act,
or any electrical, electronic or mechanical device on a toll
road for
recording the liability to pay toll, or any combination of such a
structure and such a device, and includes a toll gate’
.
[21]
Section 27 deals with
the levying of toll by SANRAL. In terms of ss 27(1) SANRAL may,
with the approval of the Minister of
Transport, declare any specified
national road or portion thereof to be a toll road; may levy and
collect a toll for the driving
or use of any vehicle on such a toll
road, provided the amount of the toll has been determined and made
known in terms of ss 27(3);
and may grant exemption from the
payment of toll in respect of vehicles or users of a category
determined by SANRAL. In terms of
ss 27(2) a declaration or
exemption only becomes effective 14 days after a notice to that
effect by SANRAL has been published
in the
Gazette.
[22]
Section 27(4) lays down
the procedure which must be followed before the Minister may give his
approval to the declaration of a national
road as a toll road in
terms of ss 27(1)(a). In summary the procedure is the following:
[a] SANRAL
must, in the prescribed manner, give notice generally of the proposed
declaration, with an indication of the approximate
position of the
toll plaza. The notice must invite interested persons to comment and
make representations on the proposed declaration
and position of the
toll plaza, allowing at least 30 days for that purpose.
[b] SANRAL
must in writing request the Premier in whose province the proposed
toll road is situated to comment on the proposed
declaration and any
other matter with regard to the toll road, allowing at least 60 days
for that purpose. A like opportunity must
be given to every
municipality in whose area that road is situated.
[c] SANRAL
must then, when applying for the Minister’s approval, forward
its proposals in that regard together with a
report on the comments
and representations received. It must indicate the extent to which
the matters raised in the comments and
representations have been
accommodated in its proposals.
[d] The
Minister must, before giving approval, be satisfied that SANRAL has
considered the comments and representations. (If
SANRAL has failed to
comply with these requirements or if the Minister is not satisfied
that SANRAL has considered the comments
and representations, he or
she must refer the application and proposals back to SANRAL for
proper compliance.)
[23]
Section 27(3) of the
pre-existing Act deals with the amount of toll that may be levied,
any rebate thereon and any increase or reduction
thereof. These
matters are determined by the Minister on the recommendation of
SANRAL (para (a)); may differ in respect of different
toll roads,
different vehicles or categories of vehicles, different times at
which vehicles or categories of vehicles are driven,
and in respect
of different categories of road users (para (b)); must be made known
by the head of the Department of Transport
in the
Gazette
(para (c)); and
become payable from the date and time determined by the Minister on
the recommendation of SANRAL and as specified
in the notice (para
(d)).
[24]
In terms of s 27(5)
any person liable for toll who, at a toll plaza or other place for
the payment of toll, refuses or fails
to pay the amount due is guilty
of an offence and is liable, apart from criminal punishment, to pay
SANRAL a civil fine of R1 000
increasing as from 1999 with
reference to the Consumer Price Index. Section 30 provides that
SANRAL may institute legal proceedings
to recover toll monies.
[25]
Section 34 deals with
SANRAL’s funding. Among the manifold sources of revenue listed
in that section is toll payable to SANRAL
in terms of Chapter 3.
Section 34(3) requires separate accounts to be kept of toll monies
and interest earned on their investment.
Such monies may be used only
for the purposes specified in ss 34(3).
[26]
Section 58(1) provides
that the Minister, after consultation with SANRAL, may make
regulations, not inconsistent with the Act, on
the matters listed in
that sub-section. There is nothing specific in the list that has to
do with toll roads. There is, however,
in para (e), the general power
to make regulations ‘with regard to anything which in terms of
this Act may or must be prescribed,
governed or determined by
regulation or which, in terms of this Act, may or must be provided
for by regulation’.
[27]
The pre-existing Act
does not contain a definition of the word ‘owner’ nor is
that word used in the Act in relation
to vehicles. Section 27(1)(b)
provides that the toll will be payable by a person driving or using a
vehicle on the toll road.
[28]
It appears from the
explanatory memorandum that accompanied the original 1998 bill that
Act 7 of 1998 was passed in accordance with
the procedure laid down
in s 75 of the Constitution, not s 76. If the DA’s
contentions in the present case are
correct, it would appear that the
original Act was not validly enacted though no relief in that regard
is sought in these proceedings.
The
Amendment Act
[29]
The Amendment Act
comprises eight sections. Section 1 brings about an amendment to the
Cross-Border Road Transport Act 4 1998
and is not germane for present
purposes. Although ss 6 to 8 of the Amendment Act amend the
pre-existing Act, the DA does not contend
that these provisions are
relevant to the question whether the amendment bill should have been
tagged as s 76 legislation.
The provisions on which the DA
relies are ss 3, 4 and 5.
[30]
Section 3(a) of the
Amendment Act amends ss 27(3) of the pre-existing Act. Section
27(3) of the pre-existing Act, it will be
recalled, deals with the
amount of toll that may be levied. In terms of the pre-existing Act,
the amount of toll may differ in
respect of different toll roads,
different vehicles or categories of vehicles, different times at
which vehicles or categories
of vehicles are driven, and different
categories of road users. The Amendment Act inserts, as further
grounds of differentiation,
‘the means by which the passage of
a vehicle beneath or through a toll plaza is identified and the
liability to pay toll
is recorded’ and ‘the means of
payment, including pre-payment of toll liability’. (By way of
illustration, in
the case of the GFIP roads the tariff of 19 November
2013 as read with the e-tolling regulations of 9 October 2013
provides for
differential tariffs, depending
inter
alia
on whether the
user is registered with SANRAL and has an e-tag affixed to his
vehicle (‘a registered e-tag user’), a
user who is not
registered with SANRAL but has an e-tag affixed to his vehicle (‘a
non-registered e-tag user’), a user
who is registered with
SANRAL but does not have an e-tag, instead electing to have his
transactions recorded photographically using
his vehicle licence
number (‘a registered VLN user’), and any other user not
falling into these categories (‘an
alternate user’).)
[31]
Sections 3(b) and (c)
of the Amendment Act amend s 27(4) of the pre-existing Act.
Section 27(4) deals with the procedure to
be followed before the
Minister may approve a toll road. The pre-existing Act requires
(i) that SANRAL give notice to the
relevant Premier and
municipalities and invite their comments and (ii) to satisfy the
Minister, when submitting its application
for approval, that SANRAL
has considered those comments and representations (though not
necessarily acceded to them):
[a] In
terms of the Amendment Act, the first of these duties remains but
there has been added (by s 3(b) of the Amendment
Act) an
obligation on the part of SANRAL, in cooperation with the relevant
municipalities and province, to perform ‘a socio-economic
and
traffic impact assessment pertaining to the proposed toll road’,
to submit that assessment to the Minister when seeking
his or her
approval, and to publish a notice in the
Gazette
indicating the availability of such report.
[b] As to
the second of these duties, SANRAL’s duties when applying to
the Minister for approval have been amplified
(by way of an amended
s 27(4)(c) inserted by s 3(c) of the Amendment Act) by
requiring SANRAL also to indicate (i) the
outcome of the
socio-economic and traffic impact assessment and (ii) ‘the
steps proposed to mitigate against the impact
or likely impact on
alternative roads with regard to maintenance and traffic management
that may result from’ the proposed
toll road declaration.
[32]
Section 4 of the
Amendment Act amends the Minister’s regulation-making power in
s 58 of the pre-existing Act and the
procedure for making
regulations:
[a] It is now
stated that the regulations must be made ‘by notice in the
Gazette
’. (This amendment appears to have been
unnecessary. The matter is already governed by s 16 of the
Interpretation Act
7 of 1959.)
[b] The
list of matters on which regulations may be made has been amplified
to include (i) ‘providing for the terms
and conditions
applicable to the payment of toll and for the establishment of a
system that permits the registration of persons
liable to pay toll’;
(ii) providing specifications for ‘any tolling equipment,
electrical, electronic or mechanical
device or a combination thereof
used for the identification of vehicles on toll roads in order to
record the liability to pay toll’,
and providing specifications
for ‘the installation, maintenance and verification of’
such devices and equipment; (iii) providing
for ‘the
manner in which the liability to pay toll will be recorded, including
the time and the manner in which such toll
must be paid’;
(iv) providing for ‘the payment of toll in cash,
electronically or by other method, which is subject
to but not
dependent on any conditions that [SANRAL] may determine under section
27(1)(b)’; (v) providing for ‘the
offences and penalties
applicable to the owner or user or driver of a vehicle in the event
of the non-payment of toll’; (vi)
providing for ‘the
method of notifying the owner, driver or the user of the vehicle of
his or her liability to pay toll’;
and (vii) providing for
the manner of recovering outstanding payment of toll.
[c] The
Amendment Act provides that regulations on these additional matters
(those specified in [c] above) ‘may provide
for the issuing of
directions, conditions or requirements for matters connected there
with’.
[d] The
Amendment Act inserts certain procedural requirements to be followed
before the Minister makes any regulations in terms
of s 58(1):
(i) He or she must submit a draft of the proposed regulations to
Parliament for comment. (ii) He or she must
publish a draft of
the proposed regulations in the
Gazette
together with a notice
calling on interested persons to comment in writing (within a period
which cannot be less than four weeks),
including any objections or
representations which they would like to make with the
Director-General for submission to the Minister.
(The syntax of
s 4(d) of the Amending Act is faulty. I have summarised what I
take to be the true intent.)
[33]
Section 5 of the
Amendment Act inserts a new s 59A into the pre-existing Act. The
new section introduces certain presumptions,
namely (i) that where it
is necessary to prove who was driving, operating or using a vehicle
at the time when the liability to
pay toll was incurred, it shall be
presumed in the absence of contrary evidence that the vehicle was
driven, operated or used by
its owner (this applies to criminal
prosecution under the Act and to civil proceedings for recovery of
toll monies); (ii) that
where the owner is a juristic person,
the person driving, operating or using the vehicle was an employee of
the owner acting in
the course and scope of the owner’s
business; (iii) that, in a prosecution under the Act, electronic
evidence produced by
a machine that has been checked for correct
working and reading by a person trained in the operation thereof is,
in the absence
of evidence to the contrary, accurate and may be used
to prove the alleged contravention; (iv) that, in a prosecution under
the
Act, a road shall be presumed, in the absence of evidence to the
contrary, to be a toll road.
[34]
Related to the latter
provisions is the insertion, into s 1 of the pre-existing Act,
of a definition of the word ‘owner’
in relation to a
vehicle, namely the same meaning as is ascribed to that word in
s 1
of The
National Road Traffic Act 93 of 1996
and the
Cross-Border Road
Transport Act 4 of 1998
.
The
parties’ contentions
[35]
It is convenient,
before reverting to the leading cases on tagging, to summarise
briefly the principal contentions of the parties.
The
Democratic Alliance
[36]
The DA was represented
at the hearing by Mr WRE Duminy SC leading Mr M Bishop.
[37]
The DA does not rely on
the provisions of the pre-existing Act in determining whether the Act
as amended meets the ‘substantial
measure’ test.
Regardless of whether or not the original Act should have been passed
in accordance with s 76, the DA
accepts its terms as a given and
relies only on the provisions introduced by the Amendment Act in
support of its argument that
the ‘substantial measure’
test required the Amendment Act to be tagged. In view of the fact
that there is no challenge
to the pre-existing Act, this approach is
in my view correct. I do not think, however, that I am obliged to
assume, merely because
the original Act was not passed in accordance
with s 76, that its terms did not in truth meet the ‘substantial
measure’
test. If I were required to approach the tagging of
the Amendment Act on the basis that in law the pre-existing Act did
not ‘in
substantial measure fall within a functional area
listed in Schedule 4’, there would be an end of the debate: if
the pre-existing
Act does not in law meet that test, the Amendment
Act
a fortiori
would
not do so. The correct approach, in my view, is to allow the
possibility that in law the pre-existing Act should have been

processed in accordance with s 76, even though I am not now
asked to grant any relief in respect of the Act in that form.
[38]
The DA argues that,
although the pre-existing Act made provision for the tolling of
national roads and permitted electronic tolling,
it did not contain
provisions which made open-road tolling by electronic means a
practical possibility. In order to make this feasible,
it was
necessary to introduce, by way of s 3(a) of the Amendment Act, a
power to differentiate, in the setting of the amount
of tolls,
between the means by which the passage of vehicles beneath or through
toll plazas was identified, the means by which
the liability to pay
toll was recorded, and the means of payment. It was also necessary to
create, by way of the new s 59A,
a presumption that the ‘owner’
of the vehicle was the person who was driving or using it at the
relevant time and thus
liable for the toll. The DA contends that, if
one has a conventional toll plaza where road users stop at a booth
and have to pay
the toll before being allowed to proceed, there is no
need to make special provision for the way in which vehicles passing
through
the toll plaza are identified. Such provisions are only
needed where vehicles using the toll road are not required physically
to
stop and pay toll. And for open-road tolling it is not enough to
make distinctions based on the means by which the passage of a

vehicle is identified and the liability to pay toll is recorded
because these means do not necessarily identify the driver or user
of
the vehicle. A presumption is thus needed that the owner of the
vehicle (a matter separately verifiable) was the driver or user
and
thus the person
prima
facie
liable to pay
the toll. No such presumption is needed where a vehicle stops and
pays toll at a booth, because the user or driver
in that situation
presents himself physically at the toll plaza.
[39]
The DA contends,
further, that in order to make open-road tolling feasible it was
necessary for the Minister to be empowered to
make regulations on the
further matters specified in s 4 of the Amendment Act.
[40]
The DA says that there
are national roads, particularly in urban areas, where a conventional
toll plaza would not be practically
feasible because it would lead to
traffic congestion. The provisions introduced by the Amendment Act,
which facilitate open-road
tolling by electronic means, thus make it
a real possibility, for the first time, that such roads can be made
toll roads. The roads
comprising the GFIP are, submits the DA, a
prime example, and others may follow in its wake. (The DA makes
reference, in this regard,
to para 9 of the Supreme Court of Appeal’s
judgment in
OUTA
,
where the court recorded that according to SANRAL the density of
traffic on the GFIP roads was such that a conventional toll
collection system through toll gates was not practically possible.)
[41]
In support of its
contention that the relevant provisions of the Amendment Act are
necessary in order to make open-road tolling
a practical possibility,
the DA refers to statements in the explanatory memorandum which
accompanied the bill. In the explanatory
memorandum the drafters said
that the bill had been ‘necessitated’ by the GFIP; that
the bill was ‘essential’
to enable the appropriate
implementation of an electronic toll collection system; and that the
pre-existing Act was ‘not
broad enough’ to cater for some
aspects of electronic toll collection. This description of the bill’s
purpose was repeated
and confirmed in the affidavit filed by the
Speaker of the National Assembly (the 2
nd
respondent).
[42]
The DA continues by
contending that the declaration of busy national roads, such as those
implicated in the GFIP, inevitably has
effects on various functions
for which provinces are responsible. The declaration of a national
road as a toll road can be expected
to cause some road users to
select alternative routes in order to avoid the toll (the DA refers
to this as the ‘radiating
impact’). These alternative
routes would typically be or include provincial and municipal roads.
So provincial and municipal
roads may become more heavily used than
before. This may require action from the province in regard to
various matters falling
within functional areas listed in Schedule 4
to the Constitution. Such matters include road traffic regulation
(because of the
increased use of provincial and municipal roads),
public transport (because tolls will induce some commuters to switch
to public
transport), environmental management and pollution control
(because increased traffic comes with an increase in noise and air
pollution).
Changes in traffic patterns, brought about by the
declaration of a national road as a toll road, may affect trade,
regional planning
and development, urban and rural development and
population development (because changes in traffic patterns may cause
particular
areas – either because of increased or reduced
traffic – to become more or less attractive for particular
kinds of
uses).
[43]
In support of the
contention that road tolling, broadly speaking, could be expected to
have effects of this kind, the DA referred
to passages in the
affidavit of the Minister of Finance, filed on behalf of the National
Treasury in the
OUTA
Constitutional
Court proceedings and incorporated into the National Treasury’s
papers in the present case, in which he said
that among government’s
reasons for including tolling as a source of finance were to moderate
traffic growth on congested
freeways, to encourage more efficient
land use and to contribute to the prioritisation of public transport
over the use of private
vehicles.
[1]
Elsewhere the Minister said that tolling not only reduced congestion
on major urban road systems but encouraged more efficient
spatial
development, lower environmental damage and less urban sprawl.
[2]
(Statements to similar effect were made by the National Treasury’s
Director-General, Mr L Fuzile, in the affidavit he filed
in the
review proceedings before Vorster J.)
[44]
In relation to the
tolling of busy urban national roads, these manifold effects, the DA
says, are made possible only by virtue of
the Amendment Act. They are
effects on functions falling within Schedule 4. The effects are, in
the DA’s submission, substantial
and thus meet the ‘substantial
measure’ test laid down by the Constitutional Court. In other
words, the Amendment Act,
by clearing the way for the open-road
tolling of busy urban national roads, is an enactment which ‘in
substantial measure
falls within functional areas listed in ‘schedule
4’ (cf
Tongoane
para 58).
[45]
In regard to the
procedural requirements which ss 3(b) and (c) insert into
s 27(4) of the pre-existing Act with regard
to the preparation
of an impact report, the DA conceded in oral argument that these
provisions did not in themselves constitute
provisions which met the
‘substantial measure’ test. The DA relies on them only as
constituting legislative recognition
of the substantial
socio-economic and traffic effects which open-road tolling is
calculated to have on the provinces and thus as
supporting its
contentions on the effects of ss 3(a), 4 and 5 of the Amendment
Act. The fact that ss 3(b) and (c) have
not yet been brought
into force is, the DA submits, irrelevant because a constitutional
challenge to the process by which an Act
was passed can be brought as
soon as the President has assented to the bill; it is not necessary
to wait until the law is brought
into force (
Doctors
for Life International v Speaker of the National Assembly &
Others
[2006] ZACC 11
;
2006 (6) SA
416
(CC) para 64).
The
respondents
[46]
The President, the
Minister of Transport and the National Treasury were represented at
the hearing by Mr JJ Gauntlett SC leading
Mr F Pelser (in the case of
the President and the National Treasury) and Mr Makka (in the case of
the Minister of Transport). The
Speaker of the National Assembly and
the Chairperson of the NCOP were represented by Mr T Motau SC leading
Mr B Makola. SANRAL
was represented by Mr Unterhalter SC leading Mr L
Sisilana, Ms KS Hofmeyr and Mr A Friedman. Despite some differences
of emphasis
and nuance, they effectively made common cause and I
shall thus not distinguish between them in summarising the
contentions.
[47]
The respondents
submitted that the pre-existing Act’s provisions were
sufficient to empower the Minister and SANRAL to institute
electronic
open-road tolling with differentiated tariffs of the kind now made
explicit in the new provisions inserted into s 27(3)
by s 3(a)
of the Amendment Act. The grounds of differentiation in determining
the amount of toll, as listed in s 27(3)(b)
of the pre-existing
Act, were merely permissive. The general power to determine the
amount of toll and rebates, increases and reductions,
as set out in
the introductory part of s 27(3), was sufficient to permit any
form of rational differentiation. Express grounds
of differentiation
are listed in para (b) merely out of caution and to indicate certain
obvious forms of rational differentiation.
While the new grounds of
differentiation inserted by s 3(a) of the Amendment Act are
specifically tailored to deal with grounds
of differentiation
relevant to electronic open-road tolling, rational differentiation on
such grounds would in any event have been
permissible under the main
empowering provision. It matters not that the drafters of the
explanatory memorandum may have thought
otherwise; the question is
one of law. (Although the respondents did not mention the maxim
expressio unius
exclusio alterius
,
their argument on this point is in effect that the maxim should not
be applied in construing s 27(3)(b). They might have
cited the
numerous authorities to the effect that the maxim is not a rigid rule
of statutory construction and must at all times
be applied with great
caution – see
Administrator,
Transvaal & Others v Zenzile & Others
1991
(1) SA 21
(A) at 37G-H, where Hoexter JA referred to the maxim
somewhat dismissively as ‘that last refuge’.)
[48]
In the alternative to
this argument, and if it were found that differentiation on the new
grounds introduced by s 3(a) is not
permissible under the
pre-existing Act, the respondents submitted that the absence of a
power to differentiate on these additional
grounds would not stand in
the way of electronic open-road tolling as part of the GFIP or
elsewhere. The absence of a power to
differentiate on these
additional grounds would merely mean that, while the amount of toll
and rebates and exemptions could still
differ in relation to
different classes of vehicles and users, there would have to be a
unitary tariff in respect of vehicles or
users falling within the
same class, ie vehicles and users falling within the same class could
not be further differentiated depending
on whether (for example) they
had acquired e-tags or registered or made prepayments and the like.
[49]
The respondents argued
that, even if the relevant provisions of the Amendment Act increased
the possibility of the introduction
of electronic open-road tolling,
a mere possibility was not sufficient. There needed to be real
effects. The GFIP was an extraordinary
project which was unlikely to
be replicated. Even if further electronic open-road tolling were
introduced on the strength of the
Amendment Act, it could not be said
that effects on functional areas of concurrent competence would be
substantial. The DA had
failed to state the exact nature of the
impact on the concurrent functional areas which it claimed would be
affected.
[50]
As to the presumption
created by s 59A, its effect in facilitating open-road tolling
is, according to the respondents, modest.
The pre-existing Act
imposes the liability on the driver or user, and that liability
remains. Although SANRAL is assisted by the
new presumption in
recovering toll and in prosecuting defaulters, SANRAL would in any
event look in the first instance to the owner
as the
prima
facie
user. With or
without the presumption, it would always be open to the owner to
contend that he or she was not the driver or user
of the vehicle. At
least in civil proceedings, SANRAL as claimant could, even without
the presumption, get past absolution on the
basis that, in the
absence of contrary evidence, the most plausible inference would be
that owner of the vehicle was the one who
was using or driving it on
the relevant occasion.
[51]
In regard to the
amplified regulation-making powers of the Minister, introduced by s 4
of the Amendment Act, the respondents
say that the additional matters
on which the Minister may make regulations concern only the
modalities of toll payment and collection.
The power to levy and
collect tolls is contained in the pre-existing Act, and the
amendments introduced by s 4 are merely
facilitative, working in
aid of the unchallenged toll-collection power. The expanded
regulation-making power has no effect, or
at least no substantial
effect, on the provinces.
[52]
As already mentioned,
the DA did not in oral argument place reliance on the amendments to
the s 27(4) procedure, introduced
by ss 3(b) and (c) of the
Amending Act, as a self-standing basis for requiring the bill to have
been tagged as a s 76
Bill. The respondents submitted that
cooperation by the provinces in the compiling of impact reports could
not be said to affect
any functional area listed in Schedule 4.
The
test for tagging
[53]
The affidavits and the
heads of argument filed on behalf of the various parties were,
insofar as the merits concerned, devoted largely
to the question
whether ss 3(a), 4 and 5 of the Amendment Act make electronic
open-road tolling feasible or more feasible,
thus increasing the
likelihood of such toll roads being declared; and whether the
resultant introduction of such toll roads would
have substantial
effects on one or more of the functional areas listed in Schedule 4.
The DA did not contend that the pre-existing
Act or the Amendment Act
legislated on any matters on which the provinces themselves could
have legislated in terms of s 104(1)(b)(i)
of the Constitution
read with Schedule 4. The DA’s case was that the impugned
legislation, assumed to be exclusively within
the legislative
competence of Parliament, would have social, economic, environmental
and other impacts which would be relevant
in the regulation of
functional areas listed in Schedule 4 and on which provinces did
indeed have concurrent legislative competence.
For example, a
significant change in traffic patterns and in resultant urban
development and the like, caused by the introduction
of electronic
open-road tolling on a busy urban national road, might require a
province to introduce or amend legislation on matters
falling within
its concurrent competence under Schedule 4 (road traffic regulation,
regional planning and development, public transport
and so forth).
The respondents for their part appeared from their affidavits and
written argument to be content to contest the
case along these lines.
[54]
The case was thus
presented as turning on whether the Amendment Act, despite
legislating on matters exclusively within Parliament’s

legislative competence, would have substantial knock-on effects into
functional areas listed in Schedule 4. For convenience I shall
refer
to this approach to the ‘substantial measure’ test as the
‘knock-on effects’ approach.
[55]
During the course of
oral argument by Mr Gauntlett SC for the 1
st
,
4
th
and 6
th
respondents, I questioned the fundamental premise of this approach. I
raised with all counsel for their consideration whether the
test laid
down in the Constitutional Court judgments was not concerned, rather,
with the extent to which the impugned enactment
legislated on matters
falling within concurrent functional areas of legislative competence
listed in Schedule 4; and that knock-on
effects into functional areas
listed in Schedule 4 were not in themselves relevant to the tagging
of legislation. For convenience
I shall refer to this approach to the
‘’substantial measure’ test as the ‘direct
regulation’ approach.
By the time Mr Unterhalter SC for SANRAL
addressed the court, the direct regulation approach had been adopted
and put at the forefront
of the argument for the respondents, with
the other contentions as fall-back submissions.
[56]
In my view, and for the
reasons which follow, the ‘substantial measure’ test laid
down in the Constitutional Court judgments
must be applied with
reference to the direct regulation approach, not the knock-on effects
approach.
[57]
In order to understand
the true import of the ‘substantial measure’ test, it is
necessary to have regard to certain
other provisions of the
Constitution which have not yet been mentioned and to the questions
which actually arose for decision in
Liquor
Bill
and
Tongoane
.
Legislative
competence
[58]
Legislative competence
refers to the authority conferred by the Constitution on a
legislature to pass legislation. The legislative
competence of
Parliament to pass national legislation is determined by s 44 of
the Constitution while the legislative competence
of the provincial
legislatures is set out in s 104. At the national level,
Parliament comprises the National Assembly and
the NCOP (s 42(1)).
As already observed, the role of the NCOP in the passing of national
legislation depends on whether the
legislation is of a kind specified
in s 74, s 75 or s 76 as the case may be. The role of
the NCOP in the passing
of national legislation is not to be confused
with the legislative competence of provincial legislatures to pass
provincial legislation.
[59]
There are certain
functional areas in regard to which both Parliament and provincial
legislatures may pass legislation. These are
listed in Schedule 4 to
the Constitution. In regard to such functional areas, there may thus
be national and provincial legislation
governing the same matter. The
Constitution contains provisions to determine precedence where there
is a conflict.
[60]
The provinces have
exclusive competence to legislate on the functional areas listed in
Schedule 5, except where national legislation
is justified by the
circumstances specified in s 44(2).
[61]
In regard to matters
falling outside the functional areas listed in Schedules 4 and 5,
legislative authority vests exclusively in
Parliament. Such matters
are not listed in any Schedule to the Constitution; they are the
residue of all matters and functions
after excising those listed in
Schedules 4 and 5. Such residual matters can thus be regulated only
by national legislation (cf
Liquor
Bill
paras 46-47).
However, and because the NCOP invariably has a voice in regard to the
passing of all national legislation pursuant
to ss 74, 75
and 76 (though the extent and nature of that voice is affected by the
legislation’s tagging), the
provinces’ interests in
relation to the proposed legislation can be voiced and to some extent
safeguarded.
[62]
In order to determine
whether authority to enact a particular piece of legislation vests
only in Parliament or concurrently in Parliament
and the provincial
legislatures, it is necessary to determine whether the legislation in
question is ‘legislation with regard
to… a matter within
a functional area listed in Schedule 4’ (see s 42(1)(a)(ii)
and s 104(1)(b)(i)). If
all the provisions of the
legislation regulate such matters, there is no difficulty. It may
happen, however, that some but
not all of the provisions of the
proposed legislation fall (or ostensibly fall) within Schedule 4
functional areas. In the case
of Parliament, this will only matter if
the aspects which do not fall within Schedule 4 fall within schedule
5 (in regard to which
Parliament’s legislative authority is
narrowly circumscribed), because for the rest the matters and
functions on which Parliament
may legislate are unlimited. In the
case of provincial legislatures, by contrast, the question would
arise whether a provincial
legislature has the authority to enact the
legislation, having regard to the inclusion of matters falling
outside the scope of
Schedules 4 and 5.
[63]
In
Western
Cape Provincial Government & Others: In re DVB Behuising (Pty)
Ltd v North West Provincial Government & Another
[2000] ZACC 2
;
2001
(1) SA 500
(CC), which dealt with the interim Constitution (where
Schedule 6 performed a similar function to Schedule 4 of the final
Constitution),
the Constitutional Court held that the manner of
resolving this type of problem in relation to legislative authority
is to characterise
the legislation by applying what is sometimes
called the ‘pith and substance’ test. This test requires
‘the determination
of the subject-matter or the substance of
the legislation, its essence, or true purpose and effect, that is,
what the [legislation]
is about’ (para 36). In footnote 53 of
DVD Behuising
the
court referred to Indian authors who said that the doctrine of ‘pith
and substance’ was one of the interpretive
tools which is
invoked whenever ‘a law dealing with a subject in one list is
also touching on a subject in another list’.
[3]
As appears from paras 36-38 of
DVD
Behuising
and the
authorities there mentioned, the purpose of the legislation is at the
forefront of this enquiry. Legislation may purport
to deal with
matters within Schedule 4 but its true purpose and effect may be
found to have been directed at achieving a different
goal falling
outside the functional areas listed in Schedule 4.
[64]
In
Liquor
Bill
the
Constitutional Court held that a Bill did not, for purposes of
legislative competence, necessarily have a single characterisation,

because a single statute might have more than once substantial
character (para 62).
[65]
In the case of national
legislation, the application of the pith and substance test to
legislative competence may lead to a conclusion
that the bill’s
pith and substance place it wholly within Schedule 4 functional
areas, even though certain provisions of
the bill (which for this
purpose would be viewed as ancillary or incidental) fall within
Schedule 5 functional areas (an exclusive
provincial competence in
the absence of s 44(2) justification) or outside Schedules 4 and
5 altogether (an exclusive national
competence). Conversely, and in
the case of provincial legislation, the pith and substance test may
lead to a conclusion that the
bill’s pith and substance place
it wholly within Schedule 4 functions, even though certain provisions
of the bill (again
viewed for this purpose as ancillary or
incidental) may fall outside both Schedules 4 and 5. A provincial
legislature would be
entitled to enact legislation of this kind
because, in accordance with the pith and substance test, the
legislation’s characterisation
as a whole would place it within
Schedule 4.
[66]
Although in practice
national legislation is ordinarily passed in the National Assembly
before being referred to the NCOP either
in terms of s 75 or
76(1), national legislation may in certain circumstances be initiated
in the NCOP, in which event s 76(2)
requires the legislation to
be referred to the National Assembly. In that regard, s 44(1)(b)(i)
confers on the NCOP the power
to pass, in accordance with s 76,
legislation ‘with regard to any matter within a functional area
listed in Schedule
4’. This is a matter of legislative
competence rather than tagging, and the pith and substance test would
thus determine
whether the NCOP could initiate the legislation in
question. So whereas the National Assembly could initiate legislation
containing
certain provisions falling within Schedule 4 even though
the pith and substance of the legislation was outside the scope of
both
Schedules 4 and 5, the NCOP could not.
[67]
Three aspects of
potential relevance to tagging may be noted from this brief
discussion of legal competence:
[a] In
the case of national legislation which is initiated in the NCOP in
terms of s 44(1)(b)(ii) read with s 76(2)
there appears to
be no scope for a distinction between the test for legislative
competence on the one hand and tagging on the other.
The NCOP can
only initiate legislation within its constitutionally-conferred
legislative competence. If such legislation, in its
pith and
substance, falls outside the scope of Schedule 4, the NCOP is not
entitled to initiate it; if the legislation, in its
pith and
substance, falls within Schedule 4, the NCOP has legislative
competence, and s 44(1)(b)(ii) requires the procedure
in s 76
to be followed. (The same observation holds true in relation to
national legislation passed on a Schedule 5 matter
on the basis of
the special grounds set out in s 44(2). If Parliament passes
legislation ‘with regard to a matter falling
within a
functional area listed in Schedule 5’, ie legislation whose
pith and substance place it within Schedule 5, s 44(2)
requires
Parliament to follow the s 76 procedure. Legislative competence
and tagging thus coincide exactly in this instance.)
[b] In
contrast to the NCOP, the National Assembly may initiate legislation
whose pith and substance fall outside both Schedules
4 and 5. Such
legislation may nevertheless contain provisions (viewed, from the
perspective of legislative competence, as incidental)
which regulate
Schedule 4 functions. This possibility creates the potential for
applying a different test for tagging under s 76(3)
than for
legislative competence.
[c] Finally,
legislative competence concerns the constitutional authority of a
national or provincial legislature to regulate
a particular
functional area. The phrase used in that regard in the relevant
provisions of s 44 and 104 is ‘legislation
with regard to
any matter within a functional area listed in’ Schedule 4 or
Schedule 5 as the case may be or ‘legislation
with regard to
any matter’ in the case of the National Assembly. This is very
similar to the language used in s 76(3)
in relation to tagging.
The
Liquor Bill case
[68]
The
Liquor
Bill
case dealt
mainly with the characterisation of legislation for purposes of
legislative competence though a preliminary issue of
tagging also
arose. The bill in that case, which had been passed by Parliament in
accordance with s 76, regulated the whole
of the liquor trade
(production, wholesale and retail). Included in the bill were
provisions relating to retail liquor licenses.
The Western Cape
Provincial Government (‘WCPG’) contended that the bill
was invalid because it intruded on the exclusive
provincial
competence of ‘Liquor licenses’ in Schedule 5 and that
such intrusion was not justified by the considerations
contemplated
in s 44(2). The Minister responded that the bill was not in
character a liquor licensing measure and that its
provisions on that
subject were purely incidental. That raised the question of
characterisation for purposes of determining legislative
competence.
However, and in reply to the Minister’s characterisation of the
bill, the WCPG contended that, if the Minister’s

characterisation were right, the bill should have been processed in
accordance with s 75 rather than s 76 and was for
that
reason invalid. This raised a question of the test for tagging.
[69]
In regard to the
tagging question (treated as a procedural challenge), Cameron J,
writing for a full court, said whatever the characterisation
of the
bill for purposes of determining legislative competence, the bill
undoubtedly contained provisions which ‘in substantial
measure’
fell within a functional area listed in Schedule 4’, namely
‘trade’ and ‘industrial promotion’
(para 27).
In terms of s 76(3) the bill had thus correctly been processed
in terms of s 76 rather than s 75.
[70]
In regard to the
legislative competence question, Cameron J considered that the bill
could not receive a single characterisation,
and that its true
substance was directed at three objectives (para 69). Parliament’s
legislative competence to pass the bill
thus had to be assessed
separately with reference to the provisions directed at these three
objectives. In relation to the first
two objectives, Cameron J
concluded that the provisions of the bill directed at those
objectives could not be characterised as
falling within Schedule 5.
The provisions directed at the third objective, by contrast (which
prescribed in some detail to the
provincial legislatures what
structures should be set up and how those structures should go about
considering and awarding retail
liquor licenses), regulated the
Schedule 5 competence of ‘Liquor licenses’, and
justification for intrusion by Parliament
in terms of s 44(2)
had not been demonstrated. The bill was thus declared
unconstitutional to that extent.
[71]
The analysis of tagging
and legislative competence in
Liquor
Bill
provides no
support for the view that knock-on effects into Schedule 4 functional
areas are of any relevance. The court was concerned
with the
functional areas which the provisions of the bill directly regulated.
In regard to legislative competence, the bill’s
provisions on
two of its three objectives directly regulated the functional areas
of ‘trade’ and ‘industrial
promotion’,
Schedule 4 functional areas which were within Parliament’s
legislative competence. The bill’s provisions
on the third of
the three objectives directly regulated the functional area of
‘Liquor licenses’, a Schedule 5 functional
area which was
outside Parliament’s legislative competence in the absence of
s 44(2) justification. In regard to tagging,
the provisions of
the bill, viewed as a whole, in substantial measure regulated ‘trade’
and ‘industrial promotion’
and the bill was thus
correctly processed in accordance with s 76.
The
Tongoane case
[72]
Whereas in
Liquor
Bill
the tagging
question was peripheral to the main issue of legislative competence,
in
Tongoane
it
was the key issue (the Constitutional Court declined to decide the
other issues which arose). Whereas in
Liquor
Bill
a provincial
government somewhat opportunistically contended that a bill should
have been processed in accordance with s 75
rather than s 76
(ie in accordance with a procedure which gave provinces a less strong
voice), in
Tongoane
the legislation in question, the Communal Land Rights Act 11 of 2004
(‘CLARA’), had been processed in terms of s 75.
The
complaint from various communities was that it should have been
processed in terms of s 76. This tagging challenge ultimately

succeeded.
[73]
In
Tongoane
Parliament contended that the tagging question should be tested in
the same way as legislative competence, ie with reference to
the pith
and substance test. Parliament submitted that the pith and substance
of CLARA was land tenure. Since this was not a functional
area listed
in Schedule 4 (or, for that matter, in Schedule 5), CLARA was not
legislation which fell within a functional area listed
in Schedule 4
within the meaning of s 76(3) of the Constitution (paras 56-57),
even though the legislation contained provisions
dealing with
‘indigenous law and customary law’ and ‘traditional
leadership’, matters which indeed fell
within Schedule 4.
[74]
The communities, on the
other hand, argued that
Liquor
Bill
established a
separate test for tagging, namely whether the provisions of the bill
‘in substantial measure’ fell within
a functional area
listed in Schedule 4. They argued that even if the legislation’s
character as a whole was land tenure,
the provisions it contained on
indigenous law, customary law and traditional leadership fell in
substantial measure within those
Schedule 4 functional areas (paras
58).
[75]
Ngcobo CJ, writing for
a unanimous court, accepted the communities’ argument and the
Liquor Bill
test
(para 58). He then proceeded to provide a more detailed justification
than was offered in
Liquor
Bill
for the
adoption of separate tests for tagging and legislative competence. He
did not decide, but appears to have been willing
to assume for
purposes of argument, that the characterisation of the legislation as
a whole for purposes of determining legislative
competence (which was
not an issue in the case) was land tenure, an exclusively national
competence. He nevertheless concluded
that there were provisions in
CLARA which in substantial measure dealt with indigenous law,
customary law and traditional leadership.
[76]
In explaining the
justification for the ‘substantial measure test’, Ngcobo
CJ said that the test for tagging has to
be informed by its purpose.
Tagging is not concerned with determining the sphere of government
that has the competence to legislate
on a matter nor is it concerned
with preventing interference in the legislative competence of another
sphere of government. Tagging
is concerned with the extent of the
voice that the provinces have on the content of legislation: ‘The
more it affects the
interests, concerns and capacities of the
provinces, the more say the provinces should have on its content’
((para 60). His
analysis in paras 61-72 was directed at supporting
this view with reference to various other provisions of the
Constitution.
[77]
In applying the
‘substantial measure’ test to CLARA (paras 74-97), Ngcobo
CJ examined the Act to determine to what extent
its provisions
regulated ‘indigenous law’ and ‘traditional
leadership’. He said (para 75) that, in the
context of
‘indigenous law and customary law’ and ‘traditional
leadership’, a bill would be found to deal
with Schedule 4
matters ‘if it repeals, replaces or amends indigenous law or
the powers and functions of traditional councils’
or if it
‘requires indigenous law to be “recorded”, codified
or “registered” or, to use the words
of CLARA,
“converted, confirmed or cancelled”’. He noted that
the field which CLARA sought to cover in relation
to the
administration of communal land was ‘not unoccupied’
because there was at present a system of law that regulated
the use,
occupation and administration of communal land and that regulated the
powers and functions of traditional leaders in relation
to communal
land (para 79). Because CLARA sought to introduce a new regime in a
field presently regulated to a large extent by
indigenous law, it
followed that CLARA in substantial measure dealt with indigenous law
and traditional leadership (para 80). The
Chief Justice illustrated
this with reference to three particular features of CLARA (paras
82-94). He concluded as follows in paras
95-97:
‘
[95] Counsel
for Parliament contended that any effect that the provisions have on
indigenous law is indirect and incidental,
and submitted that CLARA
“could only conceivably have an impact on indigenous law and
customary law to the extent that the
latter do not secure land
tenure”. However, he made no attempt to analyse the extent to
which indigenous law provided or
did not provide secure communal land
tenure. It seems to me that once it is accepted, as Parliament does,
albeit in a faint tone,
that the provisions of CLARA may have an
impact on the indigenous law of communal land tenure, it must be
accepted that the provisions
of CLARA, in substantial measure, affect
indigenous law and customary law.
[96] To
sum up, therefore, CLARA replaces the living indigenous law regime
which regulates the occupation, use and administration
of communal
land. It replaces both the institutions that regulated these matters
and their corresponding rules. CLARA also gives
traditional councils
new wide-ranging powers and functions. They include control over the
occupation, use and administration of
communal land.
[97] I
conclude, therefore, that the provisions of CLARA in substantial
measure affect “indigenous law and customary
law” and
“traditional leadership”, functional areas listed in
Schedule 4. It follows therefore that CLARA was
incorrectly tagged as
a s 75 Bill, that it should have been tagged as a s 76
Bill, and that the procedures set out in
that section should have
been followed…’
Evaluation
[78]
In para 27 of
Liquor
Bill
as approved in
para 58 of
Tongoane
the test for tagging was stated to be ‘whether the provisions
of the bill in substantial measure fall within a functional
area
listed in Schedule 4. In the succeeding paragraphs of Ngcobo J’s
judgment in
Tongoane
in support of this
test there are passages which, if they are not viewed within the
appropriate constitutional and judicial setting,
might be thought to
justify a broader knock-on effects approach to testing whether
legislation ‘in substantial measure’
falls within a
Schedule 4 functional area. Mr Duminy in replying argument placed
considerable emphasis on such passages. They include
the extract I
have already quoted from para 60. In para 62 Ngcobo CJ said that the
key to tagging lay not in concurrent legislative
competence but ‘in
those measures that substantially affect the provinces’. The
reference to provisions which ‘substantially
affect the
provinces’ is repeated in paras 64, 66, 69 and 71.
[79]
However, I am satisfied
that the court in
Tongoane
was not intending
to adopt, as a test for tagging, an enquiry into knock-on effects. In
particular, the court was not intending
to say that a bill whose
provisions regulate matters falling within Parliament’s
exclusive legislative competence (ie matters
outside of both
Schedules 4 and 5) must be tagged in terms of s 76 if the
implementation of that legislation will give rise
to knock-on effects
on matters which provinces can regulate in terms of Schedule 4. In
context, the substantial effects contemplated
in
Tongoane
have reference to the extent to which the provisions of the
legislation actually regulate a functional area listed in Schedule
4.
[80]
The first point to
note, in this regard, is that a rejection of the knock-on effects
approach and an acceptance of the direct regulation
approach does not
offend against the distinction drawn in
Tongoane
between the test for legislative competence and for tagging.
Legislative competence and tagging are both concerned with the
functions
which the legislation actually regulates. The difference is
that when testing legislative competence the function actually
regulated
is identified with reference to the pith and substance of
the enactment as a whole, whereas when testing for tagging one allows

for the possibility that provisions which are not sufficiently
dominant to give the legislation as a whole a Schedule 4 character

may nevertheless in substantial measure regulate a Schedule 4
functional area.
[81]
The second point is
that the test formulated in para 27 of
Liquor
Bill
and adopted in
para 58 of
Tongoane
is ‘whether
the
provisions
of the bill in substantial measure
fall
within
a functional
area listed in Schedule 4’ (my emphasis). This formulation is
directly linked to the language of the Constitution,
which is what
the courts were seeking to interpret. In relation to legislative
competence, the Constitution in ss 44 and 104
refers to
‘legislation … with regard to a matter within a
functional area listed in Schedule 4’. In regard to
tagging,
s 76(3) refers to a bill which ‘falls within a functional
area listed in Schedule 4’. Neither
Liquor
Bill
nor
Tongoane
suggests that the adoption of differing tests for legislative
competence and tagging has anything to do with the slight difference

in the wording of s 44 and 104 on the one hand and s 76(3)
on the other. I cannot see that there is any difference,
linguistically, between legislation ‘with regard to a matter
within [ie falling within] a functional area listed in Schedule
4’
and legislation ‘which falls within a functional area listed in
Schedule 4’. Indeed, and as I have observed,
in relation to
national legislation initiated in the NCOP the two formulations must
necessarily coincide because of the inextricable
link which
s 44(1)(b)(ii) and s 76 forge between legislative
competence and procedure; and the same is true for national

legislation on Schedule 5 matters passed on the basis set out in
s 44(2).
[82]
This justifies the
conclusion that the language of the Constitution in ss 44, 76
and 104, where it refers to legislation on
matters falling within
Schedule 4, has in mind legislation which actually regulates Schedule
4 functions. Nevertheless, the intensity
of the test for determining
whether legislation does or does not fall within Schedule 4 is
influenced by the context and purpose
of the immediate provisions
within which the phraseology appears. Provisions which may be
discounted as incidental for purposes
of determining legislative
competence may nevertheless come under the spotlight when it comes to
tagging.
[83]
It was this distinction
which, in my view, Ngcobo CJ had in mind in paras 62 and 63 when he
said that the key in tagging is not
legislative competence but those
measures that substantially affect the provinces. He said the
following in that regard in para
63 (emphasis in the original):
‘
Indeed,
as counsel for the communities pointed out, if the s 76 process
were limited only to Bills involving subject-matter
over which the
provinces themselves had concurrent legislative competence, the need
for a legislative process that took special
account of their
interests would hardly arise. This is because their concurrent
legislative powers would enable them to enact their
own preferred
legislation in the same field, which would indeed enjoy some
precedence, subject only to the national override provided
for in
s 44(2). Yet it is where matters substantially affect them
outside
their concurrent legislative competence that it is important for
their views to be properly heard during the legislative process.
This
too shows that concurrent provincial legislative competence provides
no conclusory guide to the rationale behind the s 76
process.’
Incidental provisions on Schedule 4 functions in
national legislation whose pith and substance place it outside
Schedule 4 affect
the provinces outside their concurrent legislative
competence, because on the pith and substance test a province could
not enact
such legislation. But where such incidental provisions
nevertheless regulate a Schedule 4 function in substantial measure,
it is
important that the provinces should have the special voice
contemplated in s 76.
[84]
The next consideration
is that in both
Liquor
Bill
and
Tongoane
the arguments were
directed at the functions actually regulated by the legislation under
attack and not with knock-on effects. And
the conclusions reached in
those cases on tagging were related to the extent to which the
provisions of the relevant legislation
actually regulated functions
falling within Schedule 4 or Schedule 5 as the case may be. In
Liquor
Bill
the conclusion
on tagging could hardly be controversial; many provisions of the bill
directly regulated ‘trade’ and
‘industrial
promotion’ and did so to a substantial extent. In
Tongoane
the focus was again
on the fact that CLARA actually regulated indigenous law, customary
law and traditional leadership by introducing
provisions which
substantially altered the existing law on these matters. It does not
seem to have been argued in either
Liquor
Bill
or
Tongoane
that the court
should concern itself with knock-on effects. It is unlikely, in the
circumstances, that anything said in those cases,
and in particular
in
Tongoane
,
was intended to support or approve a knock-on effects approach. The
court in
Tongoane
took it for granted, I think, that the focus was on the functions
actually regulated by the relevant provisions of the legislation.
[85]
The true distinction
which the Constitutional Court was making in
Tongoane
appears, in my
view, from para 70, where Ngcobo CJ said the following (my emphasis
and italicised insertion):
‘
To
apply the “pith and substance” test to the tagging
question, therefore, undermines the constitutional role of the

provinces in legislation in which they should have a meaningful say,
and disregards the breadth of the legislative provisions that
s 76(3)
requires to be enacted in accordance with the s 76 procedure. It
does this because it focuses on the substance
of a Bill
and
treats provisions which fall outside its main substance as merely
incidental to it
and consequently irrelevant to tagging. In so doing, it ignores the
impact of
those
provisions
[
ie
the incidental provisions
]
on the provinces. To ignore this impact is to ignore the role of the
provinces in the enactment of legislation substantially affecting

them. Therefore the test for determining how a Bill is to be tagged
must be broader than that for determining legislative competence.’
[86]
Then follows the Chief
Justice’s summary in para 72 (again my underlining):
‘
To
summarise: any Bill whose provisions substantially affect the
interests of the provinces must be enacted in accordance with the

procedure stipulated in s 76.
This
naturally includes proposed legislation over which the provinces
themselves have concurrent legislative power
,
but it goes further. It includes Bills providing for legislation
envisaged in the further provisions set out in s 76(3)(a)-(f),

over which the provinces have no legislative competence, as well as
Bills,
the
main substance of which falls within the exclusive national
competence, but the provisions which nevertheless substantially

affect the provinces
.
What must be stressed, however, is that the procedure envisaged in
s 75 remains relevant to Bills that do not, in substantial

measure, affect the provinces. Whether a Bill is a s 76 Bill is
determined in two ways. First, by the explicit list of legislative

matters in s 76(3)(a)-(f); and second by
whether
the provisions of a Bill in substantial measure fall within a
concurrent provincial legislative competence
.’
[87]
The words I have
underlined in these passages reflect that what the Constitutional
Court was emphasising was that statutory provisions
which regulate
Schedule 4 matters but are incidental to the main substance of the
bill (viewed from the perspective of legislative
competence) might
nevertheless regulate those Schedule 4 matters to an extent
justifying the more significant role envisaged for
the NCOP in s 76.
The court took for granted (as appears from para 72) that, if the
true substance of a bill placed it within
Schedule 4 (when viewed
from the perspective of legislative competence), the bill would have
to be tagged in accordance with s 76
– not because of
knock-on effects but because the whole bill actually regulated
Schedule 4 matters. And conversely it was
taken for granted, I think,
that, if the provisions of a bill were wholly outside Schedules 4 (ie
if there were not even incidental
provisions regulating Schedule 4
matters), the bill would not need to be tagged in accordance with
s 76. The court made no
reference to the knock-on effects of
provisions of a bill regulating functions falling outside Schedule 4.
The court was concerned
only with the impact of provisions which,
though incidental for purposes of legislative competence,
nevertheless affected the provinces
(ie because they regulated
Schedule 4 functions, matters of concurrent legislative competence).
If it were otherwise, Ngcobo CJ
would not have confined his remarks
in para 70 to the impact of the incidental provisions. If he had
knock-on effects in mind,
the character of particular provisions as
being main provisions or incidental provisions would be irrelevant.
He would instead
have spoken of knock-on effects of all the
provisions of the bill, whether or not they were main provisions or
incidental provisions.
[88]
A further consideration
in favour of the direct regulation approach is to be found in the
parts of s 76(3) to which I have
not as yet referred and in
s 76(4). Tagging in terms of s 76 is required not only if
the legislation ‘falls within
a functional area listed in
Schedule 4’ but also if it ‘provides for legislation
envisaged in’ various other
provisions of the Constitution. The
sections listed in ss 76(3) and (4) are: ss 44(2), 65(2),
163, 182, 195(3) and (4),
196, 197, 220(3) and Chapter 13. In these
instances there is no reason to doubt that tagging is only required
if the legislation
actually regulates the matters contemplated in
those provisions of the Constitution. There is no reason that it
should be different
in the case of the matters listed in Schedule 4.
[89]
There are also powerful
practical considerations in favour of rejecting a knock-on effects
approach. The framers of the Constitution
must have intended a
reasonably workable system for determining whether legislation was to
be tagged in terms of s 75 or s 76.
Parliament itself needs
to be able to determine this question so that the legislation can be
correctly processed. The direct regulation
approach to the
‘substantial measure’ test makes this possible, even
though there may be difficult cases on the borderline.
On the direct
regulation approach, one examines the provisions of the bill to see
what they actually regulate; if any of the provisions
regulate
Schedule 4 functional areas, a value judgement must be made as to
whether they do so in substantial measure. If so, the
bill follows
the s 76 procedure. Although there may be scope for differences
of opinion when it comes to the value judgement,
pragmatically
Parliament would usually be safe if it adopted a cautious approach
and tagged borderline bills in accordance with
s 76 rather than
s 75 (cf
Liquor
Bill
paras
26).
[90]
Tagging becomes very
much more difficult, if not impossible, if one adopts the knock-on
effects approach to the ‘substantial
measure’ test. The
knock-on effects arguments in the present case provide an
illustration. The pre-existing Act empowers
SANRAL to declare
national roads as toll roads. According to the DA, the Amendment Act
increases the likelihood of such declarations
in regard to busy urban
national roads. But the knock-on effects on the provinces in regard
(for example) to the environment, pollution
control, population
development, trade and so forth are unknown and unknowable. The
effects, if any, will not be brought about
directly by the Amendment
Act but by the subsequent exercise from time to time by SANRAL and
the Minister of the powers conferred
on them in s 27. At the
time a bill conferring such powers is proposed, one cannot know when
and to what extent the powers
will be exercised in the future. Those
required to tag the bill could at best have regard to the policy of
the government of the
day and to the views of SANRAL’s current
management, to the extent that such policy and views are known to
them. But future
governments may have different policies and SANRAL’s
future management might change their views. And if a power conferred

in terms of the proposed legislation were in due course to be
exercised, its knock-on effects would be influenced by the prevailing

social, economic and other circumstances at the time of
implementation, which could be very different from those prevailing
at
the time the legislation was passed.
[91]
The knock-on-on effects
approach would also, I think, result in virtually all legislation
having to be tagged in terms of s 76.
Everything that happens in
South Africa happens in one or more provinces. National legislation
falling outside the scope of Schedules
4 and 5 will usually have some
knock-on effects into the wide-ranging functional areas listed in
Schedule 4.
[92]
A final consideration
is that the test for tagging should sensibly have regard to effects
on the provinces in general. When national
legislation is passed
which contains provisions which in substantial measure regulate a
Schedule 4 function even though the legislation’s
character as
a whole places it outside of Schedule 4 for purposes of legislative
competence, the ‘effect’ on the provinces
is uniform, in
that the legislation operates throughout the country and thus in
substantial measure affects the law in all of the
provinces and does
so on a matter which all of the provinces have the power to regulate
in their own geographic areas. Knock-on
effects are very different.
The knock-on effects will generally be determined by when and to what
extent the legislation is implemented
over time and by the prevailing
circumstances on each such occasion. The legislation may be
implemented in a way which has effects
for one province but not
another. In the present case, for example, it is possible that the
GFIP will be the only open-road tolling
project depending for its
feasibility (if one assumes the correctness of the DA’s other
arguments) on the Amendment Act.
If so, the Amendment Act might have
no knock-on effects outside of the Gauteng province. Assuming that
this could be predicted
as the most likely scenario, it does not make
sense that the NCOP, which collects the voices of all nine provinces,
should have
an enhanced legislative role.
[93]
The pre-existing Act
and the Amendment Act contain provisions which require provinces
(through their executive, including Premiers)
to be consulted when
roads are declared as national roads and when national roads are
declared as toll roads. On the direct regulation
approach, the
inclusion of such provisions does not support a view that the
legislation in substantial measure falls within a Schedule
4
functional area. This is, in my opinion, as it should be. It is only
when SANRAL or the Minister exercise a particular power
in relation
to a particular road that one can assess which province or provinces
if any will be affected by the exercise of the
power and the extent
of such effect. This is correctly not a matter of tagging. But it is
entirely consistent with constitutional
values and cooperative
governance that, where the implementation of legislation exclusively
within a national competence may have
knock-on effects for one or
more provinces, provision should be made in the legislation for those
provinces to be involved (by
way of consultation or agreement) in the
exercise of the power. Section 40 of the pre-existing Act recognises,
by way of example,
that the declaration of an existing road as a
national road will affect the province in which the road falls; and
that the declaration
of a new road (still to be constructed) as a
national road may affect the province in which the road is to be
built if it will
have a substantial impact on traffic flows.
Similarly, the consultation for which the pre-existing s 27(4)
and the amended
s 27(4) provide in the declaration of a national
road as a toll road is concerned only with the province in which the
proposed
toll road is located. As I have said, this is not
appropriately dealt with by way of tagging, since at the stage the
legislation
is enacted it is impossible to say which provinces will
be affected and if so when and in what way.
[94]
The DA’s counsel
in written argument placed considerable reliance on the five
questions suggested by Murray and Simeon at
256-259 of the article
cited in footnote 1
supra
.
That article was written before the decision in
Tongoane
.
It was mentioned in the
Tongoane
judgment in passing. Mr Duminy in oral argument accepted that, to the
extent that the approach suggested by Murray and Simeon is
in
conflict with
Tongoane
,
I am bound by the latter decision. I do not find it necessary to
comment on the authors’ discussion of the first three questions

they pose as part of the test for tagging; those three questions all
appear to be concerned with provisions of a bill which actually

regulate a Schedule 4 matter. However, and to the extent that their
fourth question indicates (as I think it does) an approach
which
would require knock-on effects to be taken into account in
tagging,
[4]
I respectfully part company from them for all the reasons I have
given.
[95]
I thus conclude that,
in accordance with what I have called the direct regulation approach,
the ‘substantial measure’
test for tagging laid down in
Liquor Bill
and
Tongoane
requires
one to determine whether to a substantial extent the legislation
under consideration actually regulates matters falling
within
Schedule 4. If it does, the bill must be tagged under s 76. If
not, the bill is to be tagged under s 75, even
though the
implementation of the legislation on the matters falling outside
Schedule 4 may affect the social, economic and other
circumstances
relevant to the regulation of the matters listed in Schedule 4.
Application
of correct test to facts of this case
[96]
As explained earlier,
the DA’s case was founded on the knock-on effects of the
Amendment Act. It was not the DA’s case
that the pre-existing
Act or the Amendment Act actually regulates the functional areas in
Schedule 4 on which the DA relies, namely
the environment, pollution
control, public transport, regional planning and development, road
traffic regulation, trade and urban
and rural development. The DA’s
case was rather that the Amendment Act, when implemented in the
future, would give rise to
changed social, economic and other
circumstances relevant to these listed functions.
[97]
For the reasons I have
explained, I do not think that those knock-on effects are relevant to
tagging. The Amendment Act does not
intrude upon the right of
provinces to legislate in the future on any of the functional areas
relied upon by the DA and does not
constitute legislation on any of
those matters. If the implementation of the pre-existing Act as
amended by the Amendment Act does
indeed significantly change traffic
patterns, trade and urban development in a particular province, that
province will be at liberty,
if it regards this as desirable, to
enact legislation to alter the law in that province regarding these
functional areas, just
as a province is free to do so if the change
in circumstances is brought about in other ways (global financial
conditions, the
state of the domestic economy, climate change,
population movements, laws passed by other provinces and so forth).
[98]
In my view, the
pre-existing Act and the Amendment Act do not, at least in the
respects relevant to this case, regulate any functional
area listed
in Schedule 4. In terms of Schedule 5A and 5B respectively,
‘Provincial roads and traffic’  and ‘Municipal

roads’ are an exclusive provincial competence. National roads
are not listed in either Schedule 4 or Schedule 5. They thus

constitute a residual matter falling exclusively within the
legislative competence of Parliament in terms of s 44(1)(a)(i)

(‘legislation with regard to any matter’).
[99]
In terms of s 39(1)
of the Act, the government must publish its policy with regard to
national roads; and in terms of s 39(3)
SANRAL must determine
its business and financial plan and strategic plan and its standards
and criteria for road design and construction
and for road safety
within the framework of the national roads policy determined by the
government. National roads are declared
by the Minister in terms of
s 40 of the Act.
[100]
Section 27 is concerned
with the declaration of national roads as toll roads. The relevant
provisions of the Amendment Act either
amend s 27 or work in aid
of that section by creating a presumption as to the use of vehicles
and by giving the Minister additional
regulation-making powers. The
powers conferred by s 27 in connection with toll roads must be
viewed in the context of the
main functions of SANRAL as described in
s 2 and s 25(1). SANRAL is responsible for and has been
given the 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 and the financing of all those
functions in accordance with
its business and financial plan, all
with a view to ensuring that the government’s goals and policy
objectives concerning
national roads are achieved. It is to these
ends that national roads may be declared toll roads. In terms of
s 33(3) SANRAL
is required to keep separate accounts of all toll
monies. Those monies may only be used to meet expenditure connected
with the
acquisition of land for toll roads, investigations and
surveys with regard to toll roads, and the planning, designing and
construction
of, and any other work in connection with toll roads
(including the erection of toll plazas), the maintenance and
operation of
toll roads and toll plazas, and paying off loans raised
to finance toll roads.
[101]
It is clear, to my
mind, that provincial legislatures have no power to pass legislation
of the foregoing kind aimed at meeting the
purposes identified in the
Act.
[102]
In replying argument,
Mr Duminy contended, somewhat faintly I think, that s 27 of the
pre-existing Act and s 27 as amended
by the Amendment Act
regulate the functional area of ‘Road traffic regulation’.
He referred to statements by the Minister
of Finance and others to
the effect that the tolling of national roads can be used as a tool
to relieve traffic congestion, and
that it was inherent in such an
approach that the aim was to influence significant numbers of drivers
to use alternative provincial
and municipal roads. I do not accept
this argument. I am prepared to accept that the function of ‘Road
traffic regulation’
in Schedule 4 entitles provinces
(concurrently with Parliament) to pass legislation with a view to
regulating road traffic
inter
alia
on national
roads. However, the tolling of a national road in terms of s 27
is not a traffic control regulation. The character
of a power must be
determined with reference to the legitimate purposes for which it can
be exercised. SANRAL’s purposes
and functions are those
mentioned in s 2 and s 25(1). SANRAL’s function is in
essence to plan, construct, operate,
manage, control and maintain
national roads. The control of traffic (as distinct from the
infrastructure) is not one of SANRAL’s
functions. In regard to
toll roads in particular, it is clear from s 33(3) that the
purpose of declaring a national road a
toll road is to raise money to
plan, construct, maintain and operate the road in question, not to
force a change in traffic patterns.
The exercise of the power for
those purposes may have incidental benefits of the kind mentioned by
the Minister of Finance, but
the power cannot be exercised in order
to achieve those incidental benefits rather than the purposes
authorised by the Act.
[103]
It follows that in my
view the Amendment Act does not contain provisions which fall within
Schedule 4 at all. The question of ‘substantial
measure’
does not even arise.
[104]
In the light of this
conclusion it is unnecessary to deal with the arguments which were
advanced on the assumption that one must
have regard to knock-on
effects in answering the ‘substantial measure’ test for
tagging. I simply note the following
without expressing any final
view:
[a] I
think there is considerable merit in the respondents’
submission that the grounds of differentiation listed in
s 27(4)(a)
of the pre-existing Act are illustrative and are not a closed list.
Inherent in the power to determine the amount
of toll and to provide
for rebates, increases and reductions is the power to draw rational
distinctions. On that basis, and regardless
of what the drafters of
the explanatory memorandum thought, the amendments brought about by
s 3(a) of the Amendment Act do
not effect a substantial change
to the powers of the Minister in determining the amount of toll,
though they have placed the matter
beyond doubt and thus removed
scope for a contrary argument.
[b] It
might also be said, even if the grounds of differentiation listed in
s 27(4)(a) were a closed list, that the list
in the pre-existing
Act is sufficient to permit the type of differentiation that has been
introduced in the GFIP tariff (and thus
the type of differentiation
which might be thought necessary for any other open-road tolling
projects). In terms of the pre-existing
Act, differences in the
amount of tariff can be based on differences in categories of
vehicles and in categories of road users.
While these grounds in
s 27(3)(b) may not have been formulated with the distinctions of
the GFIP tariff in mind, it is fairly
arguable that vehicles or road
users could be categorised
inter alia
with reference to
whether or not an e-tag has been issued in respect of the vehicle,
whether or not the user has registered with
SANRAL and so forth. (I
should add, though, that when I raised this with Mr Unterhalter for
SANRAL he did not seem enthusiastic
to embrace it.)
[c] I
doubt whether the expansion of the Minister’s regulation-making
power by way of s 4(b) of the Amendment Act
is as significant as
the DA claims. Once the Minister is empowered to make regulations on
these additional matters, SANRAL would
be obliged to operate within
the constraints of any regulations promulgated thereunder. Absent any
such regulations, the determination
of matters such as the
specifications for tolling equipment and the like would be a matter
of administrative discretion. SANRAL
already has the power to declare
a national road a toll road, and the definition of ‘toll plaza’
makes clear that the
liability to pay toll can be recorded by
electrical, electronic or mechanical means. Unless SANRAL’s
hands are tied by regulations,
SANRAL must necessarily have the
power, in constructing the toll road or the toll plaza, to determine
the nature of the equipment
in its own discretion. In regard to the
new regulation-making power to determine the terms and conditions
applicable to the payment
of toll, the pre-existing act already
provides in s 27(3)(d) that toll is payable from the date and
time determined by the
Minister on the recommendation of SANRAL.
[d] The
significance of the presumptions created by s 5 of the Amendment
Act is more difficult to gauge. This amendment
undoubtedly brings
about a change to the pre-existing regime and I do not doubt that it
is a very useful change from SANRAL’s
perspective. Whether its
absence would cause SANRAL to abandon open-road tolling on busy
national urban roads is not, I think,
the sort of matter on which the
Constitution intended either Parliament or the courts to have to
speculate. Such speculation would
be required by the knock-on effects
approach but not on the direct regulation approach.
[105]
It is also unnecessary,
in the light of the conclusions I have reached, to discuss the
question of remedy. I simply record that
in argument the DA did not
resist the suspension of any declaration of invalidity for a period
of 18 months to afford Parliament
the opportunity of reconsidering
the Amendment Act in accordance with the s 76 procedure. In its
heads of argument the DA
submitted that the suspension should be
qualified in two respects (namely that the state should not be
allowed to rely on the new
presumption in criminal prosecutions, and
that provision should be made for the repayment of toll monies by
SANRAL if the suspension
lapsed and the declaration of invalidity
became final). These qualifications were resisted by the respondents,
inter alia
on
the basis that, because they had been raised by the DA for the first
time in argument, the respondents had not had the opportunity
of
adducing facts bearing on the question whether it would be just and
equitable (as contemplated in s 172(1)(b) of the Constitution)

to include these qualifications in an order.
Conclusion
[106]
The application must
thus be dismissed on its merits.
[107]
Leaving aside the costs
in respect of the initial scheduled hearing of 10 December 2013, I
think the parties should bear their own
costs in accordance with the
principles laid down in
Biowatch
Trust v Registrar, Genetic Resources & Others
2009
(6) SA 232
(CC). In that case it was confirmed that as a general rule
in constitutional litigation an unsuccessful litigant in proceedings

against the state should not be ordered to pay costs. The general
rule is concerned not with the characterisation of the parties
but
the nature of the issues. Equal protection under the law requires
that costs awards should not depend on whether a party is
acting in
its own interests or in the public interest and should not be
determined by whether the litigant is financially well-endowed
or
indigent or reliant on external funding. The critical question is
whether the litigation has been undertaken to assert constitutional

rights, whether the constitutional issues are genuine and
substantive, and whether there has been impropriety in the manner in

which the litigation has been undertaken (paras 16-25).
[108]
The respondents
submitted that the DA in instituting this application was seeking to
boost its political profile in the run-up to
a national election by
attacking legislation concerned with e-tolling, a cause which the DA
expected (in view of the widespread
opposition to GPIF e-tolling) to
carry popular support. However, the principles laid down in
Biowatch
indicate that this
type of criticism is misplaced and is not in itself a basis for not
applying the general rule. A litigant (including
a political party)
may attack the constitutionality of legislation for its own benefit
or in the public interest. This is by the
way. One must have regard
to the character of the litigation itself. The present case raises
genuine and substantive constitutional
issues regarding the approach
to tagging and the application of that approach to the constitutional
validity of the Amendment Act.
The application is by no means
‘frivolous or vexatious’ or ‘manifestly
inappropriate’ (
Biowatch
para 24).
[109]
The respondents argued
that even if the
Biowatch
rule were applied
to the costs in general, the costs occasioned by the urgent set-down
of the matter on 10 December 2013 should
be for the DA’s
account. They submitted that there were no considerations of urgency
which justified ‘tumbling into
court’ as the DA
supposedly did. Since the precise circumstances which gave rise to
the agreed postponement in the order
of Griesel J dated 9 December
2013 did not appear from the papers, the correspondence between the
attorneys was placed before me
by agreement.
[110]
The President’s
assent to the bill was made known by publication in the
Gazette
on 26 September 2013. The DA launched its application on 6 November
2013, six weeks later. The notice of motion stated that the

application would be made on 10 December 2013 (five weeks
thereafter), and abridged periods for the filing of papers were
specified
in the notice of motion with a view to the matter being
ripe for hearing on that date. The notice of motion called on the
respondents
to file their answering affidavits by 21 November 2013.
The National Treasury delivered its intervention application (which
also
served as its opposing papers) on 15 November 2013. By 20
November 2013 the President, the Minister and SANRAL had delivered
their
opposing papers. Only the Speaker of the National Assembly and
the Chairperson of the NCOP (whose papers were the shortest) filed

their answering papers outside of the period specified in the notice
of motion, on 28 November 2013. The notice of motion had specified
28
November 2013 as the date on which the DA would file its replying
papers. In the event, the replying papers were filed on 2
December
2013. The notice of motion also specified that the parties should
file their heads of argument by Friday 6 December 2013
in
anticipation of the hearing on Tuesday 10 December 2013.
[111]
The correspondence
relating to the conduct of the matter reflects the following:
[a] SANRAL’s
attorneys wrote to the DA’s attorneys on 11 November 2013
complaining that the application was not
urgent and stating that if
the DA declined to withdraw it SANRAL would seek a punitive costs
order.
[b] As
noted, SANRAL and the other respondents (apart from the Speaker and
Chairperson) filed their affidavits on or before
20 November 2013. On
that day the DA’s attorneys wrote to the respondents proposing
that by agreement the matter be placed
on the semi-urgent roll on a
date to be agreed, failing which on a date directed by the court on
10 December 2013, and that a timetable
for further papers be agreed.
It is unclear whether this letter was sent before or after the
receipt by the DA’s attorneys
of the answering papers filed by
the President, the Minister and SANRAL. I suspect that it was written
before receipt, and that
the DA’s attorneys had in mind that
the respondents should be given a longer period to file their
answering papers than specified
in the notice of motion.
[c] On 25
November 2013 the DA’s attorneys wrote to the respondents’
attorneys stating that they had been approached
by the Speaker and
Chairperson for an extension of time to file their answering papers;
and that the DA had provisionally agreed
to the extension, subject to
the attitude of the other respondents.
[d] SANRAL’s
attitude was conveyed in a letter from their attorneys on the same
day, in which they stated that they were
not in a position to dictate
time periods for the Speaker or Chairperson but that as far SANRAL
was concerned they insisted that
the DA comply with the time periods
set out in the notice of motion and thus file their replying papers
by 28 November 2013. It
is unclear whether the attorneys for the
President and Minister responded to the letter of 25 November 2013.
There is a letter
from the State Attorney on behalf of the National
Treasury dated 26 November 2013 in which the National Treasury aligns
itself
with the letter ‘by the second respondent’ (the
Speaker) but I suspect the intended reference was to the letter
written
on behalf of the 5
th
respondent (SANRAL).
[e] On 28
November 2013 the State Attorney wrote to the DA’s attorneys,
criticising the DA for having failed to consolidate
its application
with a similar application brought by the Tolhek Aksiegroep in
Gauteng (an application which was launched several
days after the
DA’s application, in which
inter alia
an interim
interdict was sought, and which in the event was struck from the roll
for want of urgency) and submitting for various
reasons that the DA
was litigating irresponsibly, both in relation to the court and the
other parties. The DA was asked to advise
by 16h00 the following day
whether it still intended to move its application on 10 December
2013.
[f] The
following day, 29 November 2013, the State Attorney wrote to the
registrar, stating that the DA had apparently selected
the date 10
December 2013 without prior arrangement with the Judge-President;
expressing the view that it was not responsible of
the DA to press
ahead with the hearing in this court a mere week after the enrolment
of the same issue in the application brought
in Gauteng; and
requesting the Judge President to require the DA’s attorneys to
state by close of business
inter alia
whether the DA contended
that the matter should proceed on 10 December 2014 notwithstanding
the pending hearing in Gauteng. This
letter was sent to the
Judge-President’s secretary at 14h25 on Friday 29 November
2013. (This was prior to the deadline of
16h00 which the State
Attorney had set in the previous day’s letter. The DA’s
attorneys did in fact reply to the State
Attorney prior to the 16h00
deadline, as appears below.)
[g] The
DA’s attorneys replied to the State Attorney at 15h16 on 29
November 2013. Reference was made to the fact that
SANRAL’s
attorneys had rebuffed the DA’s proposal for a revised
timetable and postponement of the case to the semi-urgent
roll. They
expressed the view that a referral to the semi-urgent roll still
remained the most practical way forward though the
letter indicates
that the DA intended to be ready for the case to proceed on 10
December 2013 if that is what the other parties
required.
[h] The
DA’s attorneys also wrote to the registrar on 29 November 2013,
attaching a copy of their reply to the State
Attorney; stating that
the DA’s counsel would be available for a meeting to discuss
arrangements; and noting that their offer
for the matter to be
postponed to the semi-urgent roll stood.
[i] The
DA filed its replying papers on Monday 2 December 2013. This was the
same day on which the Tolhek matter was scheduled
to be heard in
Gauteng. In replying affidavit the DA said that SANRAL’s
criticisms on urgency were ill-founded and that there
was no
indication that SANRAL had been prevented from placing everything it
wished before the court. The DA referred to SANRAL’s
attorneys’
letter in which they had rejected a proposed postponement and new
timetable and had instead insisted that the
DA adhere to the original
timetable specified in the notice of motion. In the replying
affidavit the DA also rejected the National
Treasury’s
criticisms with regard to urgency. (In the event the Tolhek matter
was struck from the roll in Gauteng for want
of urgency.)
[h] On
the same day (2 December 2013) the DA’s attorneys filed the
required practice note requesting an early allocation
for 10 December
2013 and stating that the matter would take one or two days.
[i] Also
on 2 December 2013, the Judge-President’s secretary wrote to
the attorneys, requesting an urgent meeting prior
to 10 December
2013.
[j] On 3
December 2013, and apparently in response to a letter from the State
Attorney of the same date, the DA’s attorneys
indicated that
with a view to saving costs they were prepared to have the matter
postponed on 10 December 2013 but not to a date
‘in the first
half of next year’ (as the State Attorney had apparently
proposed). The DA’s attorneys said that
they required the
matter to be heard in the first term of 2014.
[k]
Discussions then began between the legal teams. On Friday 6 December
2013 the DA’s attorneys were informed that lead counsel
for the
President, the Minister and the National Treasury and for SANRAL had
no concurrent availability earlier than 8-11 April
2014.
However by early afternoon, and presumably after a rearrangement of
diaries, the dates of 4 and 5 March 2014 had been
agreed with costs
to stand over. The terms of the draft order were finalised on Monday
9 December 2013 and made an order on the
same day.
[l]  Mr
Duminy informed me from the bar that the DA would have been willing
and ready to proceed with the matter on 10 December
2013 if the other
parties had insisted on this.
[112]
I do not think it was
unreasonable for the DA to serve a modified notice of motion which
made provision for an urgent hearing five
weeks hence, with an
abridged timetable to facilitate an urgent hearing. The
constitutional validity of the Amendment Act was a
question of
substantial and pressing importance, having regard to the fact that
on 9 October 2013 the
OUTA
review was
dismissed in the Supreme Court of Appeal; that on the same day the
President fixed 9 October 2013 as the date on which
the Amendment Act
would come into force; that on that date the e-tolling regulations
made by the Minister were promulgated in the
Gazette
;
and that on the same day SANRAL published for comment the revised
tariffs relating to the GFIP toll roads. The respondents in
their
answering papers spoke of the serious consequences if the Amendment
Act were found to be invalid (though these contentions
were to some
extent at odds with their counsel’s submissions that the
Amendment Act did not in truth add much to the pre-existing
Act). The
respondents, one would have expected, would have wanted the matter to
be finalised with reasonable expedition.
[113]
It was not unreasonable
for the DA to think that five weeks’ notice of the date on
which the application would be moved would
strike the right balance
between [a] the interests of the respondents in filing papers
and preparing themselves for the hearing
and [b] the interests
of the public (and the respondents themselves) in obtaining a prompt
determination of the validity of
the Amendment Act. In the event, all
the respondents apart from the Speaker of the National Assembly and
the Chairperson of the
NCOP filed their answering affidavits before
the date specified in the notice of motion. The affidavits filed by
the respondents
were lengthy and detailed. None of them found it
necessary, after the postponement of 6 December 2013, to supplement
their answering
papers in any way.
[114]
If the DA had insisted
on the matter being heard on 10 December 2013, I do not take it as a
given that an objection on the ground
of urgency would have
succeeded. The practice note in the court file indicates that the
application was referred by the Judge-President
to Griesel J as an
early allocation with an estimate of one to two days, so a judge
would probably have been available. The affidavits
were, in the
nature of things, largely argumentative in nature, and foreshadowed
at some length all the arguments subsequently
advanced before me. I
do not see that it would have been particularly difficult or
prejudicial to the respondents for argument
to take place on 10
December 2013.
[115]
The fact that the
parties agreed to a postponement does not, in the circumstances, show
that the costs relating to the initial set
down of 10 December 2013
were occasioned unreasonably. I thus do not think that those costs
should be dealt with differently from
the main costs.
[116]
I make the following
order:
[a] The
application is dismissed.
[b] The
parties shall bear their own costs.
ROGERS
J
APPEARANCES
For Applicant:

Mr
WRE Duminy SC & Mr M Bishop
Instructed by:
Minde Schapiro & Smith
Building Number 2
Tyger Valley Office Park
Cnr Willie van Schoor & Old
Oak Roads
Bellville
For First & Sixth Respondents:

Mr

JJ Gauntlett SC & Mr FB Pelser
Instructed by:
State Attorney, Pretoria
c/o State Attorney, Cape Town
4
th
floor, Liberty Life Centre
22 Long Street
Cape Town
For
Second & Third Respondents

Mr T Motau SC
& Mr B Makola
Instructed by:
State Attorney, Cape Town
4
th
floor, Liberty Life Centre
22 Long Street
Cape Town
For Fourth Respondent:

Mr
JJ Gauntlett SC & Mr A Makka
Instructed by:
State Attorney, Pretoria
c/o State Attorney, Cape Town
4
th
floor, Liberty Life Centre
22 Long Street
Cape Town
Fifth
Respondent:

Mr D Unterhalter SC,
Mr L Sisilana, Ms K Hofmeyer &
Mr A Friedman
Instructed by:
Werksmans Attorneys
18
th
floor, 1 Thibault Square
Cape
Town
[1]
Para 27.4 at record 135. See also para 29.5.8 at
record 142.
[2]
Para 29.5.7 at record 142. See also paras 29.1
and 29.2 at record 136-137.
[3]
For a useful discussion of the Canadian origins
of the 'pith and substance' test and its development in other
jurisdictions, see
Murray & Simeon ‘
Tagging’
Bills in Parliament: Section 75 or Section 76?
(2006)
123
SALJ
232
at 245-249
[4]
Their fourth question is 'Does the Bill have
implications for any policy or law which provinces are already
implementing or may
implement? If so, the Bill should follow the
s 76 procedure.' In discussing this question, the authors
observe that national
laws may affect provinces less directly than
in the manner postulated by their earlier questions. As an example,
they note that
a national law concerning universities may have an
impact on standards in high schools and thus an impact on 'Education
at all
levels, excluding tertiary education', which is a Schedule 4
functional area. They give, as another example, a national law
dealing
with children's courts (an exclusively national matter),
which may impinge on social services in the provinces and thus
warrant
the engagement of provincial governments in the NCOP.