Constitution’s procurement rules still to have their say on e-tolls

The validity of e-tolls has yet to be tested against the procurement requirements of the Constitution, says Paul Hoffman, from the Institute for Accountability in Southern Africa.

The question is whether, as required by the rule of law, it is fair and therefore legal to impose the urban e-tolls, says Hoffman.

The system according to which e-tolling, as a matter of national procurement, has to be imposed is dealt with in section 217 of the Constitution.

This important section requires that any and all state procurement has to take place according to a system which is “fair, equitable, transparent, competitive and cost-effective”.

“It is arguable that the novel and expensive e-tolling system does not necessarily comply with these five criteria. It is enough to invalidate the system of e-tolling if only one criterion is not satisfied. This is because any conduct or law that is inconsistent with the constitution is invalid,” explains Hoffman.

e-toll’s day in court…

Hoffman notes that any person who wishes to contest the validity of the procurement of urban e-tolls for Gauteng is legally at liberty to refuse to buy an e-tag and to contest the prosecution that may follow on the basis that the system is unconstitutional and illegal for want of compliance with section 217, read with section 2, of the Constitution.

The court hearing the case would then of necessity be seized with the issue of whether the e-tolling system substantively complies with the rule of law and the constitutional requirements for procurement. If it does not, no criminal consequences can flow from using an e-road without paying the e-toll.

Anyone who considers the imposition of the e-tolling system to be substantively unfair, and is prepared to contest the fairness and legality of the toll, is at liberty to refuse to buy an e-tag. A lot of people, ranging from Zwelinzima Vavi to Bishop Geoff Davis, have indicated they will not buy e-tags. There is litigation pending that raises other technical objections to the validity of the legislation.

The system is far from home and dry as a legally compliant means of collecting tax. Parliament is no longer supreme in the new South Africa; the Constitution is.

Any failure to comply with its requirements will visit invalidity upon the law and conduct concerned.Adapted from BusinessDay