ConCourt reserves judgment in e-toll case

A e-toll gantry on the N1 in Johannesburg. (M&G)

A e-toll gantry on the N1 in Johannesburg. (M&G)

The future of the controversial e-tolling system in Gauteng is still to be decided after the Constitutional Court on Wednesday reserved judgment on an application to overturn the interdict preventing the controversial system from being implemented.

"We reserve judgment and the court is adjourned," Chief Justice Mogoeng Mogoeng said after a lengthy day of arguments.

The government and the South African National Roads Agency Limited (Sanral) are currently squaring up against the Opposition to Urban Tolling Alliance (Outa) as they appeal the interdict granted by the North Gauteng High Court in April.

Outa's lawyer Alistair Franklin argued e-tolling was not the most efficient way to recoup costs for the R20-billion Gauteng Freeway Improvement Project (GFIP), which saw 185km of Gauteng's road network being upgraded.

"There are other methods to collect the money, such as fuel levies. The cost of tolling is irrational when there are other methods available which does not involve direct costs to motorists," Franklin said.

But his argument was severely interrogated by several justices of the court.

"Where is the legal rule that allows me to dictate to government how they can spend money allocated to them by Parliament?" Justice Dikgang Moseneke asked Franklin.

Moseneke added courts needed to tread carefully on policy matters.

In response, Franklin said that while courts shouldn't normally get involved in government policy decisions, the e-tolling case shows major state irrationality and thus demands action.

Earlier on in proceedings, government claimed national treasury did not have the funds to make up for any shortfall should e-tolling go ahead.

"Treasury has made it very clear they didn't plan for this, it can't be expected to step in," Jeremy Gauntlett told the court, appearing in behalf of national treasury.

Gauntlett said the interdict would unfairly impact the entire country's economy.

"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."

Gauntlett further argued Outa's opposition to e-tolling comes far too late and is akin to witnessing a hospital being constructed, but waiting for its completion to raise concerns about how it is being funded.

 "The respondent's argument that Sanral is not ready to charge for tolling is untrue.
They indeed are and the longer they are prevented from doing so the more dire the situation will become," he said.

However, this argument was also scrutinised by several justices, with Moseneke arguing that no matter that could be seen as unlawful should be dealt with on a time bound basis.

"Just because someone is late, doesn't mean you can slam the door shut," he said.

David Unterhalter SC, appearing on behalf of Sanral, argued that delays in the project as a result of the interdict prevented the agency from paying off debts incurred in building gantries.

"All concerns were taken into consideration, and the best funding model was decided upon. It's hard to see how a court review of the decision to implement e-tolling will change the fact that it's the best system available," he said.

Franklin argued that the financial strain placed on government and Sanral as a result of the tolls not being implemented, but rather due to the agency's indecision over the system's implementation.

He said it suffered "self-imposed" harm by not looking at alternative funding models and delaying the implementation of tolls on several occasions.

"Sanral was not ready and is still not ready to commence e-tolling. It appears on the facts that government was quite prepared to postpone e-tolling at its own volition," he said.

"But if there is an impediment to e-tolling that is not of its own making, then it suggests that it is calamitous and will result in irreparable harm."

Unterhalter retorted that while there were certain issues related to e-tolling that needs to be clarified, such as punitive measures for commuters who fail to pay the tolls, the system is "ready to roll".

"It is wholly unrealistic to grant an interdict against the project. I know it's all been built, what this fight about is how it is paid," he said.

There are no indications as to when judgment will be delivered by the court with a full judicial review of the decision to implement e-tolling is set to be heard in the North Gauteng High Court from November 26.

Although cases can be made for both arguments, indications are that Outa face the challenge of having to convince the Constitutional Court the interdict was just the first place.

"I am far from convinced that the granting of the interim interdict is legally sound at all," constitutional law expert Pierre de Vos said.

"The decision of the high court represents a far-reaching and even dangerous intervention by the judiciary in policy decisions taken by the executive and I would not be surprised if the Constitutional Court overturns the high court decision."

Nickolaus Bauer

Nickolaus Bauer

Nickolaus Bauer is the Mail & Guardian's jack of all trades news reporter that chases down stories ranging from politics and sports to big business and social justice. Armed with an iPad, SLR camera, camcorder and dictaphone, he aims to fight ignorance and pessimism through written words, photographs and videos. He believes South Africa could be the greatest country in the world if only her citizens would give her a chance to flourish instead of dwell on the negativity. When he's not begging his sub-editors for an extra twenty minutes after deadline, he's also known to dabble in the occasional poignant column that will leave you mulling around in the depths of your psyche. The quintessential workaholic, you can also catch him doing sports on the weekday breakfast show on SAfm and presenting the SAfm Sports Special over the weekend. Read more from Nickolaus Bauer

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