Cross-Border Road Transport Agency v Central African Road Services (Pty) Ltd and Another

In March 2011 the Minister of Transport promulgated amendment regulations under the Cross-Border Road Transport Act, substantially increasing permit fees payable by cross-border road transport operators to the Cross-Border Road Transport Agency. Central African Road Services (Pty) Ltd and another operator challenged the regulations in the North Gauteng High Court, alleging constitutional and administrative-law defects, including improper promulgation in only one official language, lack of procedural fairness, inadequate public consultation, and failure by the Agency’s board to apply its mind. The High Court declared the regulations invalid but suspended the declaration for six months to allow remedial action. The Minister failed to promulgate valid regulations within the suspension period. A further High Court order held that once the suspension lapsed, the declaration of invalidity operated retrospectively. The Agency appealed to the Constitutional Court, disputing whether the invalidity should operate retrospectively or only prospectively from the expiry of the suspension.

Leave to appeal was granted, but the appeal was dismissed with costs; the High Court order that the declaration of invalidity operated retrospectively upon expiry of the suspension period was upheld.

The case authoritatively clarifies that retrospective invalidity is the default position following a declaration of constitutional invalidity, even after a suspended order lapses, unless a court clearly limits retrospectivity. It provides important guidance on interpreting suspended declarations of invalidity and reinforces the remedial framework under section 172 of the Constitution.