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Speaker 1: Talking a lot about fuel levees for very understandable reasons

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Speaker 1: at the moment, and I thought Business Day's front page

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Speaker 1: story today was very interesting. Buoyed by the recent High

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Speaker 1: Court ruling that only Parliament, not the Finance Minister, can

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Speaker 1: change the VAT rate, the EFF has upped the ante

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Speaker 1: seeking a similar ruling on the National Treasury's powers to

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Speaker 1: increase the fuel levee. A full bench of the Western

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Speaker 1: Cape High Court earlier this month found the section that

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Speaker 1: empowers the minister to alter the that rate constitutes an

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Speaker 1: impermissible delegation of legislative power to the executive that still

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Speaker 1: needs to be confirmed by the Constitutional Court. So the

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Speaker 1: EFF latching onto the judgment in the words of Business

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Speaker 1: Day and once now to challenge the minister's power to

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Speaker 1: implement increases of fuel levees and carbon fuel levies without

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Speaker 1: parliamentary approval through money bills. Judge Dennis Davis knows a

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Speaker 1: thing or two about tax and the law and joins

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Speaker 1: us now hollow Dennis.

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Speaker 2: Ohno, JN you really lucky did you go into France?

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Speaker 1: I am indeed, I hope I'm lucky enough to get

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Speaker 1: onto the plane that is supposed to take me to

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Speaker 1: France later.

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Speaker 2: Somebody's got a JOURNI. But that's not why you called me.

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Speaker 1: No, that's when you when you heard about or read

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Speaker 1: the Western Cape High Court judgment about no, you can't

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Speaker 1: just raise that by yourself. Did you go finally, somebody's

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Speaker 1: cottoned onto this or did you go oop? So I'm

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Speaker 1: not sure what the concord's going to think about that

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Speaker 1: somewhere in between.

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Speaker 2: No, it was something in between. I think I think

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Speaker 2: that the judge. Firstly, the judgment has actually well written,

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Speaker 2: so it's a it's a wonderful surprise to get a

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Speaker 2: coherent judgment from the court that you can actually read

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Speaker 2: and say, gee, I know exactly what they're saying. So

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Speaker 2: and what they were really saying were two things that

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Speaker 2: seemed to me. One was, of course, at the end

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Speaker 2: of the day's parliament the key to the fiscus. And secondly,

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Speaker 2: you can't have a minister sort of having a wide

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Speaker 2: discretionary power which would effectively say something along the lines

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Speaker 2: of well I can increase that from fifteen to thirty percent, etc.

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Speaker 2: That would be absolutely absurd. So that what they were

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Speaker 2: saying is that the powers are too unfettered and accordingly,

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Speaker 2: Parliament has not sufficient control over that. My sense of

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Speaker 2: that is that where the middle lies, it may well

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Speaker 2: be that the constitution the court says you've got to

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Speaker 2: change the legislation to fetter the discretion. In other words,

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Speaker 2: the Minister may be able to improve that by one

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Speaker 2: percent up or one percent down, as the case may be,

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Speaker 2: and Parliament has to make the approval very quickly.

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Speaker 1: Because I mean, we're obviously thinking more about fuel levees

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Speaker 1: than that at the moment, because we've been saved three

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Speaker 1: round a liter on the fuel we put into our

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Speaker 1: motor cars. You know, So Parliament the Minister proposes a

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Speaker 1: six round or he opposes it was actually a twenty

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Speaker 1: one sense a lita increase in in the various fuel levees,

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Speaker 1: and Parliament says yay, okay. And now we get to

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Speaker 1: this critical crunch situation where the Minister is a matter

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Speaker 1: of administer of feared saves us three round alter. The

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Speaker 1: public are going fabulous, are the parliamentary Yeah?

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Speaker 2: And that's what I'm saying. I wonder whether the EESA,

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Speaker 2: who claim to represent the pro of the DA for

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Speaker 2: that mat'saga. And I rushed to call and say no,

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Speaker 2: you can't do that. You've got to pay We've all

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Speaker 2: got to pay the three round more until Parliament finally

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Speaker 2: decides to do that, which as you know, will never

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Speaker 2: be done in the day two or five. So what

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Speaker 2: I'm trying to say is it does illustrate the problem.

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Speaker 2: It does illustrate the problem about not giving a minister

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Speaker 2: at least some part to deal with emergence situations, emergency

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Speaker 2: situations such as this. The court in the DA case

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Speaker 2: never considered that. But this is going to loom large,

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Speaker 2: it seems to me in the litigation which has to

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Speaker 2: follow for the Constitutional called either to or not to

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Speaker 2: confirm the judgment of the Western Cape I Court. And

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Speaker 2: obviously the argument of the fiscus is going to be, well,

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Speaker 2: you see, if you don't give us any of these

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Speaker 2: pass the public are the ones are going to be hurt.

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Speaker 2: Look at this curse.

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Speaker 1: But as a sort of general principle, whoops, I don't

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Speaker 1: know what happened there. You would you would like Parliament

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Speaker 1: to have a say in something like that increase. And

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Speaker 1: what we had last year with the non passed budget

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Speaker 1: was was was really unpleasant and not a good look

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Speaker 1: at all. So the minister should not be allowed to

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Speaker 1: do it at his own discretion.

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Speaker 2: Absolutely, and I think that's right. And I think, as

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Speaker 2: I said, I think there are two components to this.

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Speaker 2: I think a minister can't just decide Willie Nellie to

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Speaker 2: push up let's say that, or any increase by significant sums.

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Speaker 2: I think it has to be a small threshold. And secondly,

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Speaker 2: I think Parliament has to have an expedited hearing. So

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Speaker 2: for example, in this particular case, you know, if we

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Speaker 2: had a Parliament that actually could do this, there's no

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Speaker 2: reason why they shouldn't approve this in a couple of weeks,

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Speaker 2: you know, at the maximum. But if they're not going

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Speaker 2: to do that, I'm sure what the minister's going to

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Speaker 2: say is, what do you now want me to do?

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Speaker 2: If Parliament are going to have six months to approve

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Speaker 2: by reduction of the fuel levee, the public are going

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Speaker 2: to be out of pocket for all that time in

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Speaker 2: disasters consequences. It's a very tricky situation. But I do

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Speaker 2: think Parliament should have the ultimate say yes.

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Speaker 1: But what happens then? Again a practical example, I really

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Speaker 1: don't know what's happening. Weird.

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Speaker 2: I can hear you, but I can hear you.

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Speaker 1: Because we are likely to have coalition government for quite

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Speaker 1: a long time and at the moment there I think

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Speaker 1: it's relatively easy to muster a fifty percent plus one

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Speaker 1: majority for something around VAT. But then does the DA

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Speaker 1: agree with the A and C and other parties that

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Speaker 1: would make up the fifty percent. If the next general

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Speaker 1: election the A and C drops even further, the DA

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Speaker 1: doesn't grow by much, and then you have endless horse

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Speaker 1: trading for political rather than fiscal stability reasons about whether

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Speaker 1: there should be a that increase or a that decrease.

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Speaker 2: Well, that's why we've got That's why I think the

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Speaker 2: procedures for the confirmation by Parliament have to be rethought

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Speaker 2: and be that for experedise. But let me say this.

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Speaker 2: You know the DA rushed off to court in this

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Speaker 2: particular way because they opposed it. But let's take another hypothetic.

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Speaker 2: I'm not suggesting as possible, but just assume next election

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Speaker 2: we have a DA Minister of Finance. Are they're also

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Speaker 2: going to rush off to court when he decided that

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Speaker 2: we desperate and we have to push up that by

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Speaker 2: a percent. And what I'm trying to say is these

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Speaker 2: are political consequences which I think people don't think through sufficiently.

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Speaker 2: I think the Minister has to be given from of flexibility,

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Speaker 2: but I agree that the present situation is far too wide.

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Speaker 1: Dennis, thank you very very much indeed for chatting to us.

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Speaker 1: Judge Dennis Davis