ConCourt reserves e-toll judgment
THE BATTLE RAGES ON: The Gauteng e-toll saga remains unresolved after the Constitutional Court on Wednesday reserved judgment on whether it should overturn the interdict currently preventing the system being turned on.
Author: Maryke Vermaak and Ahmed Areff
JOHANNESBURG - The Constitutional Court has reserved judgment on whether it should overturn an interim interdict preventing e-tolling in Gauteng from going ahead.
Chief Justice Mogoeng Mogoeng said on Wednesday (Aug 16, 2012): "We reserve judgment and the court is adjourned."
Opposition to Urban Tolling Alliance (Outa) lawyer Alistair Franklin told the court the SA National Roads Agency Ltd's (Sanral) choice of e-tolling as a method of funding caused it more damage than a court order that halted the system. The interim interdict was not the cause of "irreparable harm" to the road agency; it had suffered "self-imposed" harm by not looking at alternative funding.
Franklin said: "There are other methods to collect the money, such as fuel levies. The disproportionate cost of tolling is irrational when there is available to the agency another choice for funding which does not involve any costs."
His arguments were met by a considerable number of queries from the judges.
The High Court in Pretoria granted Outa an interdict against e-tolling on April 28, 2012. It instructed that a full review needed to be carried out before electronic tolling of Gauteng's highways could start.
Sanral and National Treasury are appealing against the court order. The agency argued that delays in the project due to the court's order prevented it from repaying debt incurred in building gantries.
Franklin said on Wednesday this argument did not hold water as there were four postponements before Outa's application for the interdict. "It appears on the facts that the government was quite prepared to postpone e-tolling at its own volition," he said, "but if there is an impediment to e-tolling not of its own making then it suggests that that is calamitous and will result in irreparable harm."
'CRIMINAL TO USE AND NOT PAY'
Franklin said Sanral was not ready to put the project into effect. "Sanral was not ready [at the time of the interdict] and is still not ready to commence e-tolling."
He said this was shown by the absence of a new tariff notice. Though Sanral said public transport would be exempted from e-tolling, these exemptions had not been published and the agency had not distinguished between the driver, user and owner of a vehicle in relation to tolling.
Sanral lawyer David Unterhalter argued that the costs of collection for e-tolling should have been examined holistically. "You cannot take a general policy framework and allow it to [be] subordinated to a single economic ratio. It is impossible to assess fairly the costs of collection against all the other costs of the project."
Unterhalter said the rate of non-compliance was not a proper reason for a review of the project. "There will be some measure of deviance... [but] it is a criminal offence to use a road and not pay for it. This is not a proper ground for attacking [the e-toll system]... ask if this is a system that is lawful - and it is," he said.
There were measures to manage deviance, he added, and those who did not comply would face criminal sanction. However, if people argued that they did not use the road, they could have a defence.
It was not necessary to prosecute every person but merely to make an example to encourage compliance. He admitted there were mistakes and faults but the system was ready to begin generating income.
Unterhalter also argued that the High Court had not shown restraint in its judgment and that there was a threshold that needed to be crossed before a court could intervene on a policy matter.
Deputy Chief Justice Dikgang Moseneke said courts needed to tread carefully on policy matters but that nothing was beyond review since it was a constitutional right.
National Treasury lawyer Jeremy Gauntlett said High Court Judge Bill Prinsloo did not provide adequate reasons for his decision to grant the interdict. "What he does... is tick the individual interdict boxes, and to say each time that it [the reason] is there."
He said it was difficult for the parties to determine how he had come to his conclusions; it was "wholly unrealistic" to grant an interdict against the project when it was ready to begin. "I know it's all been built, what this fight is about is how it is paid [for]."
He likened this to having built a sports stadium and reviewing it merely based on how its turnstiles worked.
Gauntlett said the interdict, by acknowledging that the government had decided to take on Sanral's debt, would unfairly affect the entire country's economy.
"The government ends up robbing Peter to pay Paul. Where Paul are road users who have claimed this wonderful world-class transport facility, and Peter are the people in other provinces."