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Parliamentary process at the heart of a new e-tolling legal challenge

3rd December 2013

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“Tagging”, which refers to the procedure used to classify draft legislation for the Parliamentary process, is at the heart of one of the new legal challenges being instituted by parties opposed to the controversial e-tolling system.

According to Lerato Zikalala, Associate at pan-African corporate law firm, Bowman Gilfillan: “Different from the unsuccessful legal challenge brought by OUTA, if instituted, this new challenge will focus on the extent to which a province like Gauteng should have been involved in the enactment of the Bill that facilitated e-tolling.”

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She explains that a “Bill” refers to draft legislation before it is formally passed by parliament to become law. The issue of tagging arises because the Constitution creates different procedures for different types of Bills. The two most common processes are the section 75 process, for Bills not affecting the provinces, and the section 76 process for Bills affecting the provinces.

“Whether or not a Bill can be said to affect the provinces is not necessarily a straight forward matter. The Constitution has schedules listing areas of governance that are of national or provincial competence, as well as those that fall within both areas. However, the Constitutional Court has stated that it is not sufficient to rely solely on these lists for the purpose of tagging Bills.

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“Parliament must look at the purpose of the Bill to see if it is likely to affect the interests, concerns and capacities of the provinces. If a Bill is likely to substantially affect the provinces, the more say the provinces should have on its content and enactment,” says Zikalala.

Essentially, it’s about participatory democracy and ensuring that those affected by legislation are given an opportunity to engage with the Bill prior to it becoming law. The tagging process is not just an in-house parliamentary ticking of boxes, it is the process which determines to what extent the provinces can have a say on legislation that might significantly affect their interests.

Sha’ista Kazee, Senior Associate at Bowman Gilfillan, notes that while correctly tagging a Bill is a legislative non-event, incorrect tagging means that the manner in which the Bill was enacted was contrary to the prescribed constitutional process, making it vulnerable to a procedural constitutional challenge. 

“A successful tagging challenge is a legal silver bullet because it means that that the legislation was fatally flawed and unconstitutional from inception. It remains however a fundamental principle of our law that even if the legislation introducing e-tolling was fatally flawed from inception, it remains valid and legally enforceable until declared invalid by our courts.  It is also important to remember that a tagging challenge only deals with the manner in which the Bill was passed, and does not deal with the actual content of the Bill or the merits of the subject matter,” says Kazee.

In effect, a successful tagging challenge forces parliament to put the Bill through the correct parliamentary process, but parliament does not necessarily have to look at content of Bill again or change any of its provisions if it is so minded.  

Zikalala adds that tagging challenges are a constitutional rarity. “There have been only been two successful tagging challenges in the last 18 years. Whether or not the legislation providing for e-tolling was incorrectly tagged is an issue that is still to be determined.”

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