CCT163/14

[2015] ZACC 12

2015 (5) SA 370 (CC)

2015 (7) BCLR 761 (CC)

Jappie AJ

17 February 2015

12 May 2015

http://hdl.handle.net/20.500.12144/3772

Application for leave to appeal against a judgment and order of the Pretoria High Court: Cross-Boarder Road Transport Agency and Another v Central African Road Services (Pty) Ltd (60113/2013) [2014] ZAGPPHC 878 (18 June 2014). See also earlier judgments of the Pretoria High Court: Central African Road Services (Pty) Ltd v Cross-Border Road Transport Agency and Another (60113/2013) [2013] ZAGPPHC 550 (1 November 2013) and Central African Services (Pty) Ltd and Another v Minister of Transport and Another (32238/2011) [2013] ZAGPPHC 549 (15 February 2013).

Doctrine of objective constitutional invalidity — retrospectivity — default position Orders properly construed — interpretation — terms and context of order with judgment as a whole 2 Declaration of statutory invalidity — powers of courts to vary the retrospectivity of an order of constitutional invalidity — power to be exercised during suspension period. Application for leave to appeal against an order of the High Court, North Gauteng Division, Pretoria on the principles governing the operation of suspended orders of constitutional invalidity where the suspension period has expired without enactment of remedial legislation. The High Court had declared certain regulations increasing permit fees payable to the Agency invalid, but suspended the declaration of invalidity pending rectification of the regulations. The regulations were not rectified. At issue was a substantial amount cross-border road users paid to the Agency during the interim period, which would be repayable to them if the invalidity operated retrospectively because of non-compliance with the condition of suspension. Court held that where the period of suspension lapses without the enactment of remedial legislation, the default position is that a declaration of invalidity operates retrospectively. This does not apply where, on a proper reading of the judgment and order, it is clear that retrospectivity was not intended to follow upon the expiry of the suspension period. The appeal was dismissed with costs. Judgment: Jappie AJ (unanimous).