Many of you already know that the ruling reached by the Constitutional Court regarding the e-toll issue favours Sanral, as the Constitutional Court, the highest Authority in the land regarding all Constitutional matters has over-tuned the ruling of the High Court preventing Sanral from going ahead with the e-tolls and thereby in effect giving Sanral the go ahead to start charging us motorists for using the road, the only other remaining free thing left to be taxed. The final Authority on the matter has had its say, and no matter what the public says now, the law has spoken and all further pleas in its direction towards obtaining justice for us will fall on deaf ears.
The Constitutional Court has ruled that the High Court erred in its judgment in that it is not the job of the Courts to interfere with the policy making responsibilities of the Executive Branch of Government and that the so-called Gauteng Freeway Improvement Project will result in the growth of South Africa’s Economy. What I will attempt to do here is to state that the Constitutional Court breached its duty towards the public of fairness and justice in the circumstances.
South Africa has three branches of Government, the Legislature that makes the law, the Executive, which is made up of the President and his Ministers, which officially passes the law by signing Legislation into law, and the Judiciary, which consists of the Courts interpreting the law and / or having their say on the law. The Executive also implements policy. What about if that policy is unfair to the public, who speaks us the people, if the highest Authority on Constitutional matters in the Country will not defend us because policy making by the Executive is not reviewable by them. All the Constitutional Court is doing is folding and passing the buck to someone else in this case. For example how the Constitutional Court acted in this case is like the employer accused of sexual harassment by his employee and subsequently referring the case to one of his advisors and being advised to fire the employee for poor work performance a month later due to her having approached him in confidence about the issue and being fired simply because she thought that she could trust her employer. Did the Constitutional Court misplace our trust? What the High Court did was apply its mind to the matter and gave the public a victory, which made us the South African people believe in this Country and its justice again.
On a lighter note, Road tax is known around the world as being the tax that motorists pay to enable them to use and / or drive their vehicles on the road, i.e. the vehicle licensing fees that us motorists once year and the Etolls are one and the same, a tax that we will have to pay on a monthly basis so that we can drive our cars on the road. As simple as that, South Africans are being taxed twice for the same thing. Fool me once shame on you, fool me twice shame on me.
In the public’s defence, I will use the Constitution being the highest law of our Nation, Section 36 States to defend us. It says that the rights in the Bill of Rights may be limited provided that the limitation is reasonable and justifiable in an open and democratic society. There are various factors that one looks at when we look at the right that is being limited. The right in this case is the fact the we, the people of South Africa were not given an adequate opportunity (our day in Court) to be heard at the Constitutional Court when the Etolls case was heard and subsequently decided on and ruled in favour of the opposition. An accused and / or any interested party in any case has standing for their case to be heard by a Court. Were the South African people represented before the Constitutional Court, I think not. The Constitutional Court ruled in our absentia.
The criteria that is used in determining when a right in the Bill of Rights is justifiably limited is firstly, the nature of the right, the importance and purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and a less restrictive means to achieve the purpose wherefore the right is limited. Otherwise, no law or any other provision in the Constitution itself may limit any right contained in the Bill of Rights.
Now, the reason behind the limitation of our right was provided by the Constitutional Court as follows: the High Court erred in restraining Sanral from proceeding simply because the policy making decision regarding Gauteng Freeway Improvement etc rested with the Executive Branch of Government and the Judiciary, i.e. the Courts have for lack of a better word “business” passing judgment on policy effecting us all that the Executive Branch of Government makes. That is all good and well, but who represents us the people of South Africa who this new policy is being imposed on, we did not get an opportunity to object and to make any representations to the Court. Furthermore, there is a less restrictive means for the pubic (us) to pay the Etolls, simply this: increase the petrol price and be done with this business, instead of taxing South Africans more every month and / or making us pay for the same thing (using the roads) twice. Therefore, the limitation of our right to just representation in Court was unreasonably as well unjustifiably limited given that we live in a society that is based on democracy and the promoting of human rights due to these rights not being adequately represented given South Africa’s sordid past.
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