The DA’s application to declare the e-tolling legislation unconstitutional and invalid was dismissed by the Western Cape High Court on Thursday.

“The application is dismissed. The parties shall bear their own costs,” Judge Owen Rogers said in court.

He said the Democratic Alliance would have 14 days to file an application for leave to appeal against his judgment.

The DA was not ordered to pay costs because Rogers believed the case had raised “genuine and substantive constitutional issues”.

The DA approached the court after the transport laws and related matters amendment bill was enacted in September last year.

Amendments for E-tolls

The amendments were primarily intended to facilitate the electronic monitoring of traffic through toll plazas and the electronic collection of the tolls.

The DA had argued the amendments were unconstitutional and invalid because they had not been passed according to what it deemed to be proper procedure, which would be with input from the provinces.

The bill was tagged as a section 75 bill – an ordinary bill not affecting provinces – rather than a section 76 bill, which does affect provinces.

The tagging has implications for voting procedures and the power of the majority party in Parliament.

A section 75 bill is still referred to the National Council of Provinces (NCOP) so it can decide whether to accept, reject or recommend amendments.

Power of National Assembly

However, the National Assembly ultimately decides whether to pass the bill with or without amendments, or not proceed with the bill at all.

With a section 75 bill, the voting procedure is more likely to result in a majority vote in the NCOP which accords with the majority in the National Assembly.

A section 76 bill is different in that it is referred to a mediation committee if the NCOP rejects the bill or if the National Assembly declines to pass it with recommended amendments.

It also enforces one vote per delegation.

This means that should the bill be rejected by the NCOP and not resolved by the mediation committee, the National Assembly cannot force the legislation through except with a two-thirds majority.

Knock-on effects for provinces

The DA’s legal team had argued that the amendments to the SA National Roads Agency Limited (Sanral) and National Roads Act had knock-on effects for provinces.

The respondents in the application were President Jacob Zuma, National Assembly Speaker Max Sisulu, National Council of Provinces chairman Mninwa Mahlangu, Transport Minister Dipuo Peters, Sanral, and the National Treasury.

The respondents had argued that the amendments did not add substantial measures to the existing Sanral Act.

Even if further e-tolling was introduced on the strength of the amendments, the respondents argued that effects on functional areas of concurrent national and provincial competence would not be substantial.

Rogers ruled that the true test in terms of the relevant sections of the Constitution favoured a direct regulation approach based on legislative competence, rather than the knock-on effects approach.

Tagging in terms of section 76

“The knock-on effects approach would also, I think, result in virtually all legislation having to be tagged in terms of section 76,” Rogers said in his written judgment.

This would be so because everything that happened in the country happened in one or more provinces.

“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… to enact legislation to alter the law in that province regarding these functional areas.”

The judge said it was clear in his mind that provincial legislatures had no power to pass legislation aimed at meeting the purposes identified in the act.