Johannesburg: Today’s Constitutional Court ruling upholding government’s appeal against a temporary restraint on the Gauteng Freeway Improvement Project established a fundamental principle about how far courts could – or could not – go in directing government operations.
The Constitutional Court on Thursday ruled in favour of government and the SA National Roads Agency Limited (SANRAL) in a court case that had led to the delay of the implementation of e-tolling on Gauteng’s freeways.
Deputy Chief Justice Dikgang Moseneke, who had authored the main judgment, said: “The interim interdict [obtained by Opposition to Urban Tolling Alliance and others] must be set aside because the [Gauteng North] High Court failed to consider or to give effect to the constitutional imperative of separation of powers.
“It [the Constitutional Court] held that beyond the common law, separation of powers is a vital tenet of our constitutional democracy. Courts must refrain from entering the exclusive domain of the executive and legislative branches of government, unless the intrusion is mandated by the Constitution.
“It held that courts should only grant an interim interdict preventing the national executive from exercising its statutory power in exceptional circumstances and when a strong case is made for the relief sought.
“Courts must ask whether it is constitutionally appropriate to grant an interdict whose effect would be to encroach upon the exclusive domain of another sphere of government.”
The Deputy Chief Justice said the duty of determining how public resources are to be drawn upon and reordered “lies in the heartland” of Executive Government function and domain.
“What is more, [barring] any proof of unlawfulness or fraud or corruption, the power and the prerogative to formulate and implement policy on how to finance public projects reside in the exclusive domain of the National Executive, subject to budgetary appropriations by Parliament.”