The EFF’s Western Cape High Court application challenging the national fuel levy has raised constitutional questions that finance minister Enoch Godongwana cannot wish away.
It is an important precedent setting case on parliament’s role in a constitutional democracy. The central question is whether parliament needs to have more oversight over proposals from the National Treasury in South Africa’s maturing democracy.
The EFF’s application before the high court seeks to vest the power to change the fuel levy exclusively in parliament.
Godongwana is opposing the case vigorously and the arguments he has put before the court are not without merit.
The Middle East conflict has caused volatility in global oil markets and the Treasury last month cut the general fuel levy by R3/l to cushion consumers from a steep monthly price increase. Godongwana contends that if parliament alone had authority over the levy, such rapid intervention would be impossible. MPs, he argues, would take months to conclude debates and pass a solution, leaving millions of South Africans exposed in the interim.
The EFF’s case rests on a straightforward reading of the constitution, which asserts that taxing powers belong to parliament, not the executive. The fuel levy is a tax.
Godongwana disputes this characterisation but the direction of legal travel is not in his favour. Earlier this year, in a case brought by the DA, the same court stripped him of the power to unilaterally alter the VAT rate, a ruling that sent the government scrambling and forced the withdrawal of a proposed 0.5 percentage point VAT increase.
That case cost the Treasury dearly, both financially and institutionally. The fuel levy case, set to be heard in May, could cost it more.
Godongwana also argues the EFF’s application is now moot because the 2025 levy increase that originally triggered the litigation has since been reversed by the 2026 cut. The recent decrease, he contends, has neutralised the harm complained of and removed the factual basis for the case. This is creative legal reasoning, but it does not resolve the underlying constitutional question. The structural issue of who holds the power to levy taxes does not evaporate because the minister has chosen, on this occasion, to exercise it downward rather than upward.
The Treasury has long treated the fuel levy as an administrative instrument, adjustable at the discretion of the minister in response to market conditions. That arrangement was convenient while it remained unchallenged. It is now being challenged and the government’s response has been to defend executive prerogative rather than engage seriously with what the constitution actually requires.
The argument that parliamentary speed is inadequate for responding to global price shocks is a legitimate policy concern. But the answer to that concern is not to permanently insulate fiscal decisions from parliamentary oversight. It is to design legislative mechanisms that allow parliament to act quickly when circumstances demand it, as other countries with similar constitutional frameworks have managed to do.
The fuel levy affects the cost of transport for every household in the country and flows through the price of nearly every good on the shelf. The idea that such a levy can be adjusted by ministerial decision, with parliament effectively informed rather than consulted, is an arrangement that sits uneasily with the democratic accountability the constitution demands.
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