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Tolling unlikely before matter returns to court

Motorists will have to wait a little longer to learn when they will have to start shelling out their cash, if at all.

After the unanimous decision was handed down, transport director general George Mahlalela said the interministerial committee set up to deal with the Gauteng Freeway Improvement Project (GFIP) "would have to meet to study the ruling before a decision on a way forward can be made".

Tolling was due to start on April 30, but was postponed for a month after meetings between Cosatu and the ANC.

Wayne Duvenage, chairperson of the Opposition to Urban Tolling Alliance, which opposed the government's application to have the interim court order preventing tolling set aside, said the judgment was "expected".

Earlier this year, the anti-tolling alliance applied to the North Gauteng High Court to have the government's decision to start tolling, following an upgrade of major freeways, reviewed. The matter is set to be heard in November and Duvenage said the Constitutional Court ruling would "not scupper" that process.

He said that he did not believe that tolling would start before the November hearing because several procedures had to be completed first.

In a blistering judgment authored by Deputy Chief Justice Dikgang Moseneke the decision to stop the tolling temporarily by high court Judge Bill Prinsloo earlier this year was savaged for its "deafening silence on the overarching consideration of separation of powers".

Balance of convenience test
The judgment found several instances in which the order encroached on the functions of Parliament and the Cabinet.

Moseneke stated that, in handing down a restraining order, courts had to weigh up the inconvenience caused to the applicant if it was not awarded against the inconvenience suffered by the respondent if the order was granted – the "balance of convenience test".

Moseneke found that the high court should have placed "due weight on the uncontested evidence that 99% of the burden of tolling would be borne by more affluent road users … the harm that these users will experience will therefore not be of a pressing or acute kind". That "did not exceed the prejudice that the national executive government, national treasury and Sanral will have to endure should the temporary restraining order be granted".

"The immediate and ongoing result of the interdict," Moseneke stated, was that the Cabinet, Parliament and the treasury "will have to allocate R27-million per month to Sanral in order to meet its ongoing capital and interest payments in respect of the GFIP". This meant "wide-ranging consequences for national finances and the management of our country's sovereign debt".

Sanral incurred a R21-billion debt to finance the first phase of the freeway project, of which the government had guaranteed R19-million.

In the event of a default, the court noted, the government "runs the risk of being called upon to pay the full outstanding debt … at once".

This impact of the restraining order "is to invade the heartland of the national treasury function and force the hand of Parliament's budgetary role" – another trespass on the separation of powers, he stated.

Monthly expenditure
According to Finance Minister Pravin Gordhan, in submissions to the Constitutional Court, the delay in implementing tolling had already cost R2.7-million, 40% of Sanral's estimated 2012 revenue. Its average monthly expenditure on the freeway project amounted to R601-million for this financial year and, without tolling, that would have to be paid by the treasury, Gordhan submitted.

The court also considered other financial consequences, including a two-notch downgrade in Sanral's credit rating by Moody's, which was apparently linked to the interdict being granted. Parliament would also have to appropriate more money from the treasury to reduce Sanral's debt exposure. The legislature had already approved a special appropriation of R5.75-billion to reduce the impact of tolls, which was used to defray Sanral's operational expenditure, interest payments and other toll-related expenditure.

Moseneke noted the "harm and inconvenience" to motorists was the result of a "national executive decision" about how public funds were to be spent, "over which the executive government disposes and for which it, and it alone, has the public responsibility.

"Thus the duty of determining how public resources are to be drawn upon and reordered lies in the heartland of executive function and domain. What is more, absent of any proof of unlawfulness or fraud or corruption, the power and the prerogative to formulate and implement policy on how to finance public projects reside in the exclusive domain of the national executive, subject to the budgetary appropriations by Parliament," Moseneke stated.

The judgment also considered that "the collection and ordering of public resources inevitably calls for policy-laden and polycentric decision-making. Courts are not always well suited to make decisions of that order".

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Niren Tolsi
Niren Tolsi is a freelance journalist whose interests include social justice, citizen mobilisation and state violence, protest, the Constitution and Constitutional Court, football and Test cricket.

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