The North Gauteng High Court’s decision to interdict e-tolling on Gauteng’s highways constitutes unlawful interference by the judiciary in the affairs of the government, Finance Minister Pravin Gordhan, the South African National Roads Agency (Sanral) and government departments argue in their appeal against the decision.

In an unusual move, Mr Gordhan and his colleagues have approached the Constitutional Court directly, rather than lodging the appeal with the high court.

In an affidavit lodged with the application, Mr Gordhan says at the heart of the dispute "lies a fundamental issue regarding the separation of powers and whether or not a court can exercise discretionary judgment over a government policy decision".

If left unchecked, the e-tolling judgment could set "a precedent for future judicial intervention along similar lines".

Mr Gordhan said it was therefore imperative that the Constitutional Court considered the matter to "determine the limits of this kind of judicial intervention".

Judge Bill Prinsloo’s judgment, handed down on April 28, favoured an application brought by the Opposition to Urban Tolling Alliance (Outa) and interdicted Sanral from commencing tolling on Gauteng’s highways prior to a full judicial review of the project.

But Mr Gordhan argued the interdict was a judgment of "long-lasting consequence" because the review would take at least a year as the litigation went through the courts. Meanwhile, the delay would cause irreparable harm to the government and the country.

Not only would the government be prevented from collecting revenue that it was empowered by law to collect to meet its debt and other financial obligations, but the harm would extend to the financial standing and reputation of the government, Mr Gordhan said.

"This cannot be allowed to continue and in these circumstances, the applicants are constrained to apply to this court for leave to appeal against the judgment."

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