National Treasury and Others v Opposition to Urban Tolling Alliance and Others

The Cabinet approved the Gauteng Freeway Improvement Project (GFIP) in 2007 to upgrade roads in Gauteng. The South African National Roads Agency Limited (SANRAL), an organ of state, undertook extensive road upgrades at a cost of R21 billion, funded by loans with a R19 billion government guarantee. The financing policy adopted was the "user pay" principle through electronic tolling (e-tolling). In 2008, SANRAL declared certain Gauteng roads as toll roads with the Transport Minister's approval under section 27(1)(a)(i) of the SANRAL Act. The Director-General of Water and Environmental Affairs also granted environmental approvals. In March 2012, the Opposition to Urban Tolling Alliance (OUTA) and other respondents approached the North Gauteng High Court to review these decisions and sought an interim interdict to prevent SANRAL from levying and collecting tolls. On 28 April 2012, Prinsloo J granted the interim interdict, prohibiting SANRAL from implementing e-tolling pending the review. The National Treasury and SANRAL then sought direct leave to appeal to the Constitutional Court.

• Whether it is in the interests of justice to grant direct leave to appeal to the Constitutional Court against an interim interdict
• Whether a temporary interdict against the exercise of statutory powers is appealable
• What test applies when granting interim interdicts that potentially interfere with the exercise of executive or legislative power
• Whether the High Court properly applied the requirements for granting an interim interdict, particularly in relation to prima facie right, irreparable harm, and balance of convenience
• Whether the grant of the interim interdict impermissibly trespassed on the constitutional principle of separation of powers

Leave to appeal granted. Appeal upheld. The interim interdict granted by the North Gauteng High Court on 28 April 2012 was set aside. Costs ordered to be costs in the review.

When a court considers granting an interim interdict that restrains the exercise of statutory power by an executive or legislative branch of government, it must apply the common law Setlogelo test (prima facie right, irreparable harm, balance of convenience, no alternative remedy) in a manner consistent with the Constitution's normative framework, particularly the principle of separation of powers. Courts must carefully assess whether the restraining order will intrude upon the exclusive terrain of another branch of government. When such intrusion is present, courts should grant the interdict only in the clearest of cases and after establishing a strong case for relief, particularly where no fundamental rights beyond administrative justice are at stake. In weighing the balance of convenience, courts must give proper weight to "separation of powers harm"—the harm that flows from preventing a lawful exercise of executive or legislative power before final adjudication. The power to formulate and implement policy on public resource allocation, absent proof of unlawfulness, fraud or corruption, resides in the exclusive domain of the National Executive, and courts should be highly reluctant to interfere with such decisions through interim relief.

Moseneke DCJ noted that a political party like the Democratic Alliance seeking admission as amicus curiae must make submissions useful to the court and different from the parties, not advance sectarian or partisan interests. The judgment also observed that the right to review administrative action under PAJA resides in everyone under the Constitution, but the prima facie right required for an interim interdict must be a substantive right threatened by irreparable harm, not merely the right to seek review itself. Froneman J, in a concurring judgment, suggested it may be preferable to regard cases involving potential breach of national separation of powers as exceptional, deserving different treatment rather than locating separation of powers concerns solely within the traditional interdict framework. He proposed that courts should first ask whether national legislative or executive power will be transgressed, and if so, grant the remedy only in the clearest of cases, with one important consideration being the extent to which fundamental constitutional rights may be affected.

This case is significant for establishing the proper approach to interim interdicts that potentially interfere with the exercise of executive or legislative power. It clarifies that while the common law Setlogelo test remains applicable, courts must apply it cognisant of constitutional principles, particularly separation of powers. The judgment emphasizes that courts should grant temporary restraining orders against the exercise of statutory power only in exceptional circumstances and the clearest of cases, especially where fundamental rights are not directly implicated. The case reinforces that policy decisions regarding the allocation of public resources fall within the exclusive domain of the executive, subject to lawful exercise. It also provides guidance on when direct appeals to the Constitutional Court against interim interdicts will be in the interests of justice—primarily where national separation of powers issues are at stake. The judgment highlights that courts must carefully weigh "separation of powers harm" when considering the balance of convenience in interim interdict applications against state functionaries exercising lawful statutory powers.