CCT38/12

[2012] ZACC 18

2012 (6) SA 223 (CC)

2012 (11) BCLR 1148 (CC)

Moseneke DCJ Majority judgment

Froneman J separate judgment

20 September 2012

http://hdl.handle.net/20.500.12144/3675

Application for leave to appeal directly to the CC against the judgment and order of the North Gauteng High Court: Opposition to Urban Tolling Alliance and Others v The South African National Roads Agency Ltd and Others [2012] ZAGPPHC 63

Application for leave to appeal directly to this Court, setting aside the order of the North Gauteng High Court, Pretoria, which interdicted SANRAL from levying and collecting toll on Gauteng roads. The Court held that the High Court’s judgment should be set aside as it failed to consider the significance of the principle of separation of powers. Further, Courts should grant interdicts only in exceptional circumstances and when a strong case is made out for the relief sought. Courts must refrain from entering the exclusive terrain of the executive and legislative branches of government, unless the intrusion is mandated by the Constitution. Courts must inquire whether it is constitutionally appropriate to grant the interdict and they must examine whether the order will encroach on the domain of another sphere of government. The High Court should have found that the prejudice that will confront motorists in Gauteng if the interim interdict is not granted does not exceed the prejudice that the national executive government, National Treasury and SANRAL will have to endure should the temporary restraining order be granted. This Court upheld the appeal and set aside the order of the High Court and ordered costs to be costs in the review. Froneman J, in a concurring judgment, adopted a narrower approach for the grant of leave to appeal, and a separate requirement for temporary interdicts sought against the two other national arms of government. Majority: Moseneke DCJ (Mogoeng CJ, Cameron J, Jafta J, Khampepe J, Skweyiya J and Van der Westhuizen J concurring). Separate concurrence: Froneman J.