Mia Swart

The nature and place of the doctrine of separation of powers in South African Constitutional jurisprudence remains a hotly contested topic. In spite of the celebrated fact that the South African Constitutional Court has been more interventionist than  has been the case in many comparative jurisdictions, the Court has not always taken a progressive approach in this regard. The recent case of National Treasury and Others v Opposition to Urban Tolling Alliance and Others involving the legality of a controversial government decision to toll roads in Gauteng, can be described as particularly conservative in its approach to separation of powers. In this case the Constitutional Court contradicted its own previous formulation and articulation regarding the place of the doctrine of separation of powers in South Africa. It is argued that the South African model of separation of powers, as agreed upon by the negotiators of the Constitution, politicians, judges and academics, allows for more intervention in the domain of the executive than the Court acknowledged in the case. By examining comparative jurisprudence, it is shown that the separation of powers doctrine does not restrain courts from pronouncing on the legality of matters involving executive resource allocation. It is argued further that the e-tolling case has wide-ranging implications for human rights issues, and that in light of the fact that these rights issues were never raised before the court or by the court, the Court did not pronounce on the constitutionality of the e-tolling scheme. We argue that in light of the wide-ranging impact of the case on the lives of South African commuters, it is unfortunate that the Court could not seize the opportunity to give a more expansive judgment. In short, the judgment does not do justice to the impact and importance of e-tolling.