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The FF Plus’ relentless struggle against e-tolls has stopped this controversial Bill in its tracks for now and forced president Jacob Zuma to consider it anew, Adv. Anton Alberts, the Freedom Front Plus’ parliamentary spokesperson on transport says.
 
Although the president’s office has at present drawn a veil of secrecy over the status of the Transport Acts and Related Matters Amendment Bill (also known as the E-toll Bill), the FF Plus is of the opinion that the president has very little room to manoeuvre in signing the Bill and should rather send it back to parliament. As he had previously in similar circumstances and with similar advice referred the Intellectual Property Rights Amendment Bill back to Parliament, the president will act unconstitutionally if he does not act consistently.
 
After a senior personnel member of president Zuma’s office had initially confirmed that state legal advisors concur with the legal opinion of the FF Plus that the Amendment Bill is unconstitutional, the person was later silenced and the president’s office is keeping mum about the Bill. Only the signature of president Zuma is needed for the Bill to become law.
 
Mr. Mac Maharaj, the presidential spokesperson, has confirmed that president Zuma is studying the matter and will at a later date announce his finding.
 
The minister of transport has now in a reply to a question of Adv. Anton Alberts, said the target date for the implementation of the Bill is still 2013, but that there is uncertainty about an exact date as the president first has to sign the E-toll Bill. With this, the minister acknowledges that the government’s expectation is still to activate the e-toll system in 2013 and that they will not be waiting for the 2014 elections. In effect, the activation of the e-toll system will not be taking place in 2013 as a result of the expected referral of the E-toll Bill back to parliament.
 
This development is a direct consequence of a legal opinion of Adv. Alberts about the constitutionality of the Bill.
 
According to Adv. Alberts, he believes the president will have little room to manoeuvre in signing the Bill and will instead have to send it back to parliament due to the damning legal advice which reveals the defects in the Bill.
 
“This has been confirmed by the president’s legal advisors. With this the FF Plus has bought some time for amongst other, OUTA, to complete its court case against SANRAL and the government.

“The FF Plus also informed president Zuma that if he should indeed sign the Bill, it would still be contested in court. We are of the opinion that the government will lose the case and will once again receive an order to pay legal costs. A court case will only delay the completion of the E-toll Bill further.

“That is why we believe the Bill should be sent back to parliament.
 
“The longer the president allows the issue to drag on, the more he allows the deadline for the implementation of the e-tolls to be extended. If OUTA was to lose its court case, the e-tolls will probably only start in 2015 due to the FF Plus’ intervention.”

The parliamentary deadline to submit bills for it to be completed by the end of this year had already lapsed on 7 June 2013. This means that if the E-toll Bill was to be sent back to parliament, it will only be properly dealt with by the portfolio committee on transport next year.

It takes a minimum of 15 weeks, without anything delaying the process, for a Section 76 Bill to pass through both the National Assembly and the National Council of Provinces (committee meetings included) and be sent to the president for his signature. If one is to consider that the 2014 elections are due in the same period (April/May), the E-toll Bill could possibly only be completed by the second half of 2014 and then in addition to that, it will be dealt with by a new parliament.
 
The new parliament may delay the Bill even further and additionally the new minister of transport will have to issue regulations in terms of the E-toll Bill to allow the e-toll system to be implemented. Thus, given the chaos which could be expected in 2014, it is reasonable to calculate that the E-toll Bill will only be effective in the first half of 2015 and the e-toll system later on in 2015.
 
“Furthermore, should OUTA lose its case, the FF Plus would still continue to find ways to have the e-toll declared void in court or in parliament,” Adv. Alberts said.
 
The basis for the unconstitutionality and legal defects 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.