18 December 2012
The display of a triumphalist attitude towards citizens in litigation matters is not in the character of the South African government. Even in court battles we win against some of our citizens, we remain conscious that we are essentially a government of the people for the people.
However, in our recent court victory against the Opposition to Urban Tolling (OUTA), there are issues of principle we must raise. It is one thing to bring court action against an adversary on meritorious grounds but quite another to do so solely with the intention to harass or subdue one's opponent. In law, the latter is called vexatious litigation -- legal action brought regardless of its merits.
OUTA's initial and successful application to the North Gauteng Court last March to halt e-tolling on the Gauteng Freeway Improvement Project (GFIP) might have been a meritorious cause of action. Citizens and civil society must be able to approach the courts when their rights have been or will be violated by government action.
Government appealed the North Gauteng Court order to the Constitutional Court and won. In its unanimous judgment, the ConCourt concluded that the interim order against e-tolling must be set aside because "the High Court failed to consider or to give effect to the constitutional imperative of the separation of powers." In delivering the judgment, Deputy Chief Justice Dikgang Moseneke warned that courts must refrain from entering the "exclusive terrain" of the executive and legislative branches of government unless the instruction was mandated by the Constitutional Court.
At that stage, OUTA should have started seeing the signs of what was an unwarranted filing of a meritless case on its part. Despite what was, even to a layman, an apparent warning by Moseneke not to abuse the judicial process by attempting to have courts pronounce on matters that are constitutionally within the purview of the executive and the legislature, OUTA announced, with much bravado, that it would continue with its case to subject the decision to toll the GFIP to a full judicial review.
During the review, OUTA made scurrilous claims in court about SANRAL having published "sterile" and "misleading" notices about the intention to toll certain roads in Gauteng. In effect, OUTA accused SANRAL of dishonesty. If up until then there was any doubt about the vexatious nature of OUTA's action, its counsel's baseless claim of dishonesty by SANRAL gave away its strategy - to harass and subdue SANRAL. This might have worked in public meetings under the glare of TV cameras but in a court of law it is the facts and not the PR that matter.
Having weighed the arguments presented by both government and OUTA, in the final analysis Judge Louis Vorster found that the latter's application that there had not been an efficient public participation process in the implementation of e-tolling was flawed. He dismissed OUTA's application with costs. Courts have the discretion not to award costs against an unsuccessful litigant especially in public interest cases such as the e-tolling matter. It takes some really unbecoming behaviour by a litigant in a public interest case for a court to award a costs order against that litigant.
Though one has not fully studied the judgment, the lack of decorum with which OUTA conducted its case, particularly its baseless claim of dishonesty by SANRAL, and its insistence to push ahead with a full review even in the face of a meritless case and an earlier Constitutional Court ruling could explain the awarding of costs in favour of government. Of course, OUTA has the right to appeal but it should now be careful that it is actually not found by a court of law to be frivolous and indeed vexatious.
As for OUTA's post-judgment media statement, one found the tacit encouragement of motorists to defy the law very disappointing. South Africans should all accept the principles underlying the rule of law and defer to court decisions when there are disputes. The rule of law in our country is supreme. No one - no politician, no unionist, no citizen, no interest group and no former CEO of a car rental company - is above the law. Each of us must accept the rule of all our laws, even if we have to hold our noses in complying with some of them. By this legal maxim we have chosen to live as South Africans - the rule of law.
Vusi Mona is Deputy CEO of Government Communication and Information System, he served in the government's communication task team on the GFIP.