Further to our media release of yesterday, Justice Project South Africa has noted that, despite our attorneys not having received a formal written response to our letter, from the Department of Transport by close of business yesterday, the Department chose to address the concerns raised by a putting out media release (attached) at 19:11 last night.
Our response to their media release is as follows:
This latest response from the department acutely highlights the contempt or disrespect with which the Department of Transport and other departments and SANRAL have treated the public and not properly addressed or clarified reasonable legal questions that have been posed to them by us in the interests of the general public. This time however, instead of referring us to the media on a lawyers’ letterhead as they had previously done, they left it to us to read it in the media.
Since they have chosen to respond to us through the media, we will now respond in kind.
Whilst the media release sent out by the Department of Transport apparently seeks to trivialise the “mistakes” made, apparently in the Afrikaans version of the e-toll tariff gazette, it does not justify the legal position for them to simply say “The noted mistake in question won’t affect the validity of the legislation”. The mere reliance on a pre-constitutional common law presumption that one version may be valid where there are two conflicting versions, especially where these provisions affect the Constitutional rights of the public, the Department clearly overlooks the fact that the presumption does not validate the invalid law especially as regards lawful administrative action. Legal certainty is required by the public. Only a Court can now give that certainty.
In the past, where “mistakes” have been noticed in government gazette notices subsequent to their publication; in particular those issued by the Department of Transport, such gazettes have been repealed and the relevant retraction notices issued. It seems however that everything surrounding e-tolls has not been afforded the same treatment.
The claim by the Department of Transport “The noted mistake in question won’t affect the validity of the legislation” and their assertion that they are “correcting the mistake” that is invalid, and it is not for anyone to prove the lawfulness of acting under invalid legislation but for the Department to obtain confirmation of the High Court as to clarity thereof and enforceability of the administrative action based on conflicting legislation. Until so confirmed the public stand to be prejudiced. They have openly admitted that “mistakes” were made in the tariff gazette; therefore JPSA does not seek to belabour this point.
There is sufficient Constitutional Court case law to suggest that their media release-based claim is not founded in law; but in their opinion and desire to wish away their “mistakes” and therefore it is now for the Department of Transport and SANRAL to approach the High Court to ratify their claim in the form of a Declaratory Order. By doing so, the Court will get the opportunity to confirm their assertions and the presumption – or not.
National Chairman – Justice Project South Africa (NPC)