Declaration of toll roadsAdministrative law - Declaration of toll roads by Minister - Legality
facts
In SANRAL v City of Cape Town (66/2016) [2016] ZASCA 122, the SCA addressed the legality of the process followed with regard to the declaration of toll roads in the Western Cape.
The Minister of Transport, in 2008, declared certain portions of the N1 and N2 roads to be toll roads. These formed part of the N1-N2 Winelands Toll Highway Project. The City applied successfully to the High Court to have the decision set aside. The matter was taken on appeal to the SCA.
At the outset, the SCA emphasized the importance of the doctrine of separation of powers. In other words, it was entirely within the power of the legislative and executive arms of government to formulate and implement policy on how to embark on, and finance, state projects. This included decisions on how national roads ought to be constructed and financed. Such projects required policy-laden and polycentric decision-making.
The SCA stressed that it would be in breach of the doctrine of separation of powers for it to rule on whether the project in question should have been embarked on and whether tolling was an appropriate means to finance it. However, the SCA held that it was required to ensure that the relevant organs of state had acted in accordance with the principle of legality. To that effect, it was necessary to determine whether such organs of state had followed the applicable statutory prescripts.
judgment
On the facts, the SCA found that SANRAL’s board of directors had never held a meeting to consider the matter. Furthermore, the board had never formally approved the tolling of the roads. By reason of the importance and financial scale of the project, the SCA held that the lack of serious and informed deliberation by the board was a fundamental flaw. It also held that a board resolution adopted by a different board, years later, could not legally confirm a decision that had never been taken.
Accordingly, the SCA deemed SANRAL to have acted unlawfully. For this, and related reasons, the SCA held that the Minister’s declaration of certain portions of the N1 and N2 as toll roads was invalid.