An increase in the fuel levy is not a Money Bill, and there is no legal requirement that it must be subjected to the parliamentary process envisaged in the Constitution, the Full Bench of the High Court in Cape Town has found.
The High Court on Monday handed down its reasons for dismissing, on 3 June, an urgent application by the Economic Freedom Fighters (EFF) to suspend the Minister of Finance’s decision to increase the general fuel levy.
Read: Fuel levy rises despite court challenge, but price drop cushions blow for motorists
The EFF’s application was divided into two parts. Part A sought interim relief: the suspension of the minister’s decision and an interdict preventing its implementation, pending the outcome of Part B. Part B aimed to review and set aside the decision.
The Court identified three “fatal flaws” in the EFF’s application.
First flaw: Absence of review grounds in the founding affidavit
Drawing on the Constitutional Court’s decision in Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others (2020), the judgment emphasised that for a Court to grant an interim interdict, it must be satisfied that the applicant has strong prospects of success in the main review. This requires the adjudicating court to “peek into the grounds of review raised in the main review application and assess their strength”. Only if the review is likely to succeed should the interdict be granted, given the implications for the separation of powers.
In this case, the EFF’s founding affidavit contained no review grounds whatsoever. The High Court highlighted that the deponent for the EFF explicitly stated in the founding affidavit: “At this stage, the EFF is in no position to definitively set out to this Court what the nature of our Part B would be because to date, the minister has not responded to the EFF letter.” This admission confirmed that, at the time of launching the application, the EFF had not formulated any specific grounds for review. As a result, the Court was unable to evaluate the strength of the proposed review, rendering it impossible to determine the prospects of success.
Second flaw: Failure to establish a prima facie right
Building on the first flaw, the Court applied the established requirements for interim interdictory relief, as set out in the Setlogelo test: (1) a prima facie right, even if open to some doubt; (2) irreparable harm if the right is not protected; (3) a balance of convenience favouring the grant; and (4) no alternative remedy.
The judgment focused primarily on the first requirement, concluding that the EFF had not established a prima facie right, which rendered the relief “stillborn” and obviated the need to delve into the other elements.
The EFF asserted that the Court should consider its prospects of success in Part B, with stronger prospects inclining the court towards granting relief. However, the Court reiterated that no review grounds were advanced in the founding affidavit – a point conceded by the EFF – making it impossible to assess those prospects.
Third flaw: Lawful exercise of power under the Customs and Excise Act
The most significant substantive flaw identified by the Court lay in the EFF’s foundational legal argument regarding the Minister of Finance’s powers to impose and implement the fuel levy increase.
The EFF contended that the minister’s announcement on 21 May imposed a tax under section 77(3) of the Constitution, requiring the introduction of a Money Bill as defined in sections 77(1) and (2), followed by the parliamentary process for ordinary Bills not affecting the provinces under section 75. The EFF argued that the minister’s failure to engage this “mandatory parliamentary process” rendered the decision unlawful.
Crucially, the Court noted a key concession in the EFF’s founding affidavit: the EFF acknowledged that the minister’s decision “does not in itself render his decision unlawful”. Instead, the EFF’s grievance focused on the implementation mechanism.
The judgment said this concession confirmed, on the EFF’s own version, the lawfulness of the decision, shifting the inquiry to the statutory framework for its execution. The Court observed that this framework – the Customs and Excise Act – was known to the EFF before the litigation, and its legality was not challenged.
According to the minister, the fuel levy adjustment was not a Money Bill, and thus section 77 of the Constitution did not apply. Instead, the power derived from section 48 of the Act, which authorises amendments to Schedule 1, including Part 5A where the fuel levy is levied.
The fuel levy is defined in the Act as “any duty leviable under Part 5 of Schedule 1 on any goods which have been manufactured in or imported into the Republic”. Pursuant to the announcement, the minister approved amendments on 1 June and published Notices in the Government Gazette, effective 4 June. The preamble to the Notice invoked section 48 explicitly.
Section 48(2) empowers the minister to “from time to time by like Notice amend or withdraw or, if so withdrawn, insert Part 2, Part 4, or Part 5 of Schedule 1, whenever he deems it expedient in the public interest to do so”. The Court found this provision directly applicable, enabling the increase without a Money Bill.
Historical context supported this: the general fuel levy had been increased repeatedly, including seven times in the past 10 years while the EFF held seats in Parliament, without objection to the mechanism. The EFF did not dispute this in reply.
The Court concluded that the fuel levy increase was “clearly not a section 77 Money Bills matter”, because no Bill was introduced, and section 75’s process was inapplicable.
Relying on the Constitutional Court’s decision in Nu Africa Duty Free Shops (Pty) Ltd v Minister of Finance and Others (2023), the judgment affirmed section 48 as a valid form of subordinate fiscal law-making. In Nu Africa, the Court held that such amendments facilitate efficient governance, with parliamentary oversight under section 48(6), which provides that amendments lapse after one calendar year unless Parliament intervenes.
The Full Bench found that the EFF did not meaningfully engage these points, merely noting section 48(6)’s pre-constitutional origins without challenging its constitutionality or the framework’s validity. Given Nu Africa’s endorsement of similar provisions, the Court found no merit in the EFF’s complaints. Thus, no legal basis existed for the suspension relief, because the minister’s actions were lawful under the Act.
