ConCourt to hear suspended order appeal

2015-02-16 21:11
(File: Sapa)

(File: Sapa)

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Johannesburg -The Constitutional Court will hear an application on Tuesday for leave to appeal in a case over a suspended order of constitutional invalidity in transport regulations.

The case relates to when an order of invalidity takes effect, if a court order is suspended for a time but expires without remedial legislation being enacted.

It stems from the transport minister's publication on 31 March 2011 of regulations, in terms of the Cross Border Road Transport Act, which substantially increased cross-border road transport permit fees.

Central African Road Services (CARS) challenged the regulations, which substantially increased cross-border road transport permit fees, after they were published by the transport minister on 31 March 2011.

The North Gauteng High Court in Pretoria found that they were invalid because of insufficient public participation and because they had not been published in two official languages.

However, the court suspended the order of invalidity for six months to give the minister an opportunity to remedy the situation.

The suspension expired on 15 August 2013, without new regulations being published.

A dispute arose between CARS and the Cross-Border Road Transport Agency about whether the regulations were invalid from the date the suspension expired, or with full retrospective effect.

They went back to the high court, and another judge ruled that the regulations were invalid with full retrospective effect.

The Cross-Border Road Transport Agency has approached the Constitutional Court to declare that the order of invalidity took effect from 15 August 2013.

It contends that if a full retrospective order is granted, it will not be able to carry out its public interest mandate because of its worsening financial position.

CARS opposes the application, arguing that the ordinary rule means an order of invalidity has full retrospective effect although a court can order a departure from this.

It maintains that there was nothing in the high court's order, or any consideration of the administration of justice, to indicate that the order of invalidity came into operation with retrospective effect.

The Road Freight Association has been admitted as a friend of the court, and submits that Canadian case law supports the full retrospective effect.

Exceptions to this would apply only in cases where this would result in possible danger to the public, threaten the rule of law, or deprive deserving people of benefits. It submits that such exceptions do not apply in this case.

Read more on:    constitutional court  |  bloemfontein  |  transport

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