IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA (JOHANNESBURG)
CC Case No. 38/2012 NGHC Case No. 17141/2012 In the matter between:
NATIONAL TREASURY First Applicant THE SOUTH AFRICAN NATIONAL
ROADS AGENCY LTD Second Applicant THE MINISTER, DEPARTMENT OF
TRANSPORT REPUBLIC OF SOUTH AFRICA Third Applicant THE MEC, DEPARTMENT OF ROADS
AND TRANSPORT, GAUTENG Fourth Applicant THE MINISTER, DEPARTMENT OF WATER
AND ENVIRONMENTAL AFFAIRS Fifth Applicant THE DIRECTOR-GENERAL, DEPARTMENT OF
WATER AND ENVIRONMENTAL AFFAIRS Sixth Applicant and
OPPOSITION TO URBAN TOLLING ALLIANCE First Respondent
SOUTH AFRICAN VEHICLE RENTING
AND LEASING ASSOCIATION Second Respondent QUADPARA ASSOCIATION
OF SOUTH AFRICA Third Respondent SOUTH AFRICAN NATIONAL
CONSUMER UNION Fourth Respondent NATIONAL CONSUMER COMMISSION Fifth Respondent
SECOND APPLICANT’S PRACTICE NOTE
1. Nature of the proceedings:
1.1. This is an application for leave to appeal by the applicants against the interim interdict granted by the North Gauteng High Court on 28 April 2012.
2. Issues to be argued:
2.1. Whether leave to appeal should be granted.
2.2. Whether, if leave is granted:
2.2.1. the High Court’s grant of the interim interdict was inconsistent with the principle of the separation of powers;
2.2.2. the High Court applied the correct test when it determined whether to grant the interim interdict sought by
the first to fourth respondents; and
2.2.3. if the High Court applied the correct test, whether its application of that test was correct given the nature of the decisions under attack in the review.
3. Relevant portions of the record:
3.1. All.
4. Estimated duration of the argument:
4.1. One day.
5. Summary of the second applicant’s main arguments:
5.1. Given that the matter has been set down for argument on the application for leave to appeal, as well as the merits of the appeal, we address both these issues. In so far as the merits of the appeal are concerned, we submit that:
5.1.1. The grant of the interdict had a direct and immediate impact on the separation of powers. At its core, the interdict prevents an organ of state from exercising its statutory duties
to prevent any prejudice to the financial interests of the State, to take effective and appropriate steps to collect all revenue due to it, and to prevent irregular expenditure and it affects National Treasury’s carefully balanced policy decisions about revenue procurement and allocation.
5.1.2. The High Court’s judgment trespasses upon the respect that is due to policy making by organs of state: first, by failing to recognise that the intensity of review that is permissible in respect of policy making is modest, and, secondly, by applying an inappropriate threshold to the showing that is necessary to secure an interim interdict to prevent the implementation of decisions predicated upon significant issues of public policy.
5.1.3. The High Court erred in failing to appreciate the nature of the interdict sought and the impact that it would have on the budgeting and revenue determinations of government. As a result, it applied the incorrect test to the determination of whether the interdict should be granted.
5.1.4. Even if the traditional test for an interim interdict was correctly applied by the High Court, the conclusion that the first to fourth respondents had satisfied that test is unsustainable.
5.2. In so far as the application for leave to appeal is concerned, we submit that leave to appeal ought to be granted because:
5.2.1. It is common cause that the case raises a constitutional matter; and
5.2.2. It is in the interests of justice for leave to appeal to be granted directly to this Court because:
5.2.2.1. the interdict constitutes an unprecedented intrusion into the executive domain and has significantly undermined SANRAL and the government’s fiscal planning and its policy of revenue procurement and allocation;
5.2.2.2. requiring the applicants to approach the Supreme Court of Appeal before coming to this
Court would unduly prolong the harm which they are currently suffering as a result of the interdict.
6. Main authorities on which the second applicant will rely:
6.1. International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2010 (5) BCLR (CC)
6.2. Minister of Health v Treatment Action Campaign (No 1) 2002 (5) SA 703 (CC)
