Separation of powers, active liberty and the allocation of public resources: The E-Tolling case

Authors Firoz Cachalia

ISSN: 1996-2177
Affiliations: Adjunct Professor, School of Law, University of the Witwatersrand
Source: South African Law Journal, Volume 132 Issue 2, 2015, p. 285 – 312


The 1996 South African Constitution envisages a significantly expanded role for the judiciary. A change in legal culture, following South Africa’s constitutional transition, which is receptive to post-formalist styles of legal reasoning, also tends to expand the reach of the law. This change has implications for the relationship between the judiciary and the elected branches of government, and therefore for separation of powers. This article considers the principle of separation of powers in this context, as a source of both judicial authority and judicial self-restraint. Taking its cue from National Treasury & others v Opposition to Urban Tolling Alliance & others, it argues that the normativity of the principle of separation of powers and the democratic principles that inform the Constitution should frame the court’s consideration of the limits of judicial intervention in cases concerning the allocation of public resources, at least in macro-political cases that do not involve specific spending decisions affecting identifiable individuals. In the E-Tolling case — which came before the Constitutional Court by way of an appeal against the grant of injunctive relief against an organ of state (the South African Roads Agency) — the majority of the court relied on the polycentricity of resource allocation in upholding the appeal. In a separate judgment, Froneman J offered a different separation of powers justification for this outcome, saying simply: ‘[T]he courts of this country do not determine what kind of funding should be used for infrastructural spending on roads and who should bear the brunt of the cost. The remedy in that regard lies in the political process.’ Froneman J’s political process argument seems to suggest a broader normative consideration, which is that such issues should as a matter of political morality and legal principle be resolved by the elected branches of government, because they are elected. This article seeks to develop this line of argument by drawing on Breyer J’s suggestion that when interpreting the United States Constitution, its democratic objectives should be taken into account. The principle of active liberty, or self-government, is also one of the fundamental principles of the South African Constitution which should, along with other related principles (independence of the judiciary, the rule of law, and individual rights), be taken into account in developing and applying the separation of powers as a flexible constitutional principle relied upon by the judiciary to regulate its relationship with the representative branches and in appropriate cases to justify judicial restraint.