The importance of this debate increases daily as disputes that are better dealt with in the political arena land up in the courts. The latest in this seemingly endless line of issues to receive forensic rather than political treatment involves Brett Murray’s controversial painting of President Jacob Zuma.
Surprisingly, a decision that did not generate great controversy about judicial reach was the interdict granted by Judge Bill Prinsloo in the e-tolling case. It prevented the South African National Roads Agency Limited (Sanral) from levying and collecting tolls on seven parts of the national road network in Gauteng until a substantial review had been completed. The proceedings – for the interdict and the review – were brought by the Opposition to Urban Tolling Alliance, a coalition of interests ranging from car-hire companies to 94 businesses and 1831 individuals, four of whom provided affidavits about the hardships e-tolling would cause them.
Prinsloo found that the applicants had shown there was a prima facie basis to the possible success of the review application. Furthermore, he held that the applicants would suffer irreparable harm if e-tolling began, because there were no adequate alternative routes for commuters and thus the financial drain would be considerable.
Turning to the critical third leg of the inquiry, Prinsloo said: “I am alive to the fact that Sanral may well suffer considerable financial losses through the inability to levy toll monies during the period pending the outcome of proceedings before the court of review. This could result in the business rating of Sanral being downgraded and also impact on its ability to execute other necessary projects.”
The judge acknowledged that the state may have to pay Sanral’s full debt of R20billion at once, “with possible negative effects permeating … the economy”. Noting that tens of thousands of motorists would suffer hardship if e-tolling went ahead, as well as the “widespread protest actions” against e-tolls, he found that the balance of convenience favoured the applicants compared with the problems faced by Sanral and the state if the scheme was postponed.
Prinsloo was under considerable pressure to decide the case fast: the hearing took three days, the record of the case was more than 2500 pages and 19 counsel appeared, including some of the finest senior counsel in the land. The judge observed that he was compelled to hand down judgment over the long weekend because tolling was due to commence on the Monday, April 30. Arguably, the judge could have taken longer – by then Luthuli House had intervened and, after a meeting with Cosatu that took far less than three days, e-tolling was postponed for a month.
The essential debate, however, concerns the balance a court must strike in such a case. This balance is generally the product of an individual judge’s value judgment. In this case the judge took the view that the impact on commuters would be greater if e-tolling went ahead than that on Sanral and the state if the scheme was halted. There is precious little analysis in the judgment, beyond that reproduced in this column, to show how the court came to its conclusion. However difficult the matter because of the public outcry, to which the judge repeatedly refers, there is certainly a reasonable basis to argue that this is a case where caution dictated in favour of a deferential approach to so complex a fiscal set of consequences.
The upshot is that the government is on the hook for R200million a month. Because the review may only be decided after a year or more, with inevitable appeals, the final cost of this interdict could run into a few billion. Assume a (conservative) cost of R2billion: think how many houses, clinics or schools could have been built for the poorest of the poor. Thanks to this order, Sanral will now struggle to raise money on international markets – so how many roads will remain in a perilous state because of a paucity of funds? Beyond Sanral, South Africa’s ability to raise money for much-needed infrastructure has possibly been compromised.
These implications reveal the danger of having the judiciary resolve conflicts in which not all the implications of an order can possibly be considered within the limited confines of the judicial process. It is an area in which sensible debate about the judicial role should take place.serjeant at the bar