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The Freedom Front Plus today sent a letter to President Jacob Zuma in which he is requested to not sign the Transport Laws and Related Matters Amendment Bill (also known as the E-Toll Bill), because the Bill is unconstitutional.
 
“The President is being asked to rather use his constitutional discretion to send the Amendment Bill back to parliament,” Adv. Anton Alberts, the parliamentary spokesperson on Transport for the Freedom Front Plus says.
 
“We have established that the Amendment Bill has certain shortcomings and is unconstitutional. The most important basis of unconstitutionality is that the Amendment Bill was classified incorrectly as a Section 75 Bill (which does not affect provinces).

“It appears that the Amendment Bill should actually have been classified as a Section 76 Bill, which affects provinces and in all probability also classified as a partial Money-Bill in terms of Section 77.
 
“The Constitutional Court had in the past decided that a Bill which had been classified incorrectly is void from the outset.
 
“The FF Plus believes that if the President does not send the Amendment Bill back to Parliament to correct the mistakes, a court application could be brought, which would declare it void. The FF Plus is however hoping that further legal actions will not be necessary,” Adv. Alberts said.
 
He said the FF Plus had stated in its request to the President, that he had on a previous occasion sent an Amendment Bill back to Parliament due to its unconstitutionality, i.e. the Intellectual Property Amendment Bill, following a well-motivated request of the IFP MP and lawyer, Mario Oriani-Ambrosini.
 
The President had in the case of the relevant Amendment Act, sought the legal opinion of a senior advocate to enable him to make the correct decision. Some of the legal opinions contained in the advocates’ recommendation are also applicable to the E-Toll Amendment Bill.
 
The FF Plus had pertinently brought this to the attention of President Zuma and requested him to act consistently by also referring this Amendment Bill back to Parliament.
 
The basis of unconstitutionality and legal shortcomings can be explained as follows:
 
·        The most important argument is that the E-Toll Amendment Bill should be a Section 76 Bill as the Amendment Bill will affect provincial powers and capabilities. The e-toll system affects provincial powers in particular, as set out in Section 76(3) and Schedule 4 of the Constitution and more specifically provincial matters such as public transport (the purpose of the e-toll system is aimed precisely at making use of public transport), city planning and development (the e-toll system has an influence on it as transport patterns will be changing), road traffic regulation (the e-toll system will be changing transport patterns as motorists start making use of alternative suburban routes), and vehicle licensing (the withholding thereof which will possibly be used by SANRAL to enforce the payment of fines). The Constitutional Court had ordered that a Bill can be classified as a Section 76 Bill when, not only the essence of the act deals with a provincial matter, but also when the effect of an Act will be of such a nature that it would have an effect on provincial matters. This was confirmed by the legal opinion which the president received about the Intellectual Property Amendment Bill. It is therefore clear that the E-Toll Amendment Bill will definitely have an effect on provincial matters and capabilities.
 
·        In the second instance, it is argued that the levying of a toll actually entails the collection of taxes, as set out in Section 77. That is why the part which deals with the levying of tolls and toll tariffs in both the E-Toll Amendment Bill and the SANRAL Act, should actually be contained in a separate Money Bill, which has to be submitted by the Minister of Finance as a separate Bill. Section 77 stipulates that only the Minister of Finance can submit Money Bills.

·        Lastly, the FF Plus finds the clause in the E-Toll Amendment Bill which excludes the application of the National Credit Act from all tolls completely, to be problematic, as the national Credit Regulator tasked with the management of the Credit Act, was mot, as prescribed by parliamentary rules, invited by the parliamentary portfolio committee on Transport to comment on the restriction of his jurisdiction. This constitutes a breach of Parliament’s own rules and is probably undermining the National Credit Act itself.
 
The FF Plus is therefore convinced that the E-Toll Amendment Bill is in essence unconstitutional and legally defective and the President should therefore have no other choice but to refer the Amendment Bill back to Parliament.
 
If the President does not heed the legal advice, which indeed had also come from his own office with regard to the legal opinion on the Intellectual Property Amendment Bill, the FF Plus will consider legal action.