"The original Constitutional Court judgment blasted a hole into Outa's [Opposition to Urban Tolling Alliance] legal argument by saying that policy decisions are not to be meddled with by the courts," Pierre de Vos, a constitutional law expert, told the Mail & Guardian on Tuesday.
Outa – a civil society organisation solely formed to contest the introduction of e-tolling on Gauteng's highways – this week filed papers in the North Gauteng High Court for leave to appeal a ruling that would pave the way for the introduction of the contentious system.
In December, the court ruled in favour of the South African National Roads Agency Limited (Sanral), against an application to have the decision to implement electronic tolling on Gauteng roads reviewed and set aside.
It followed a Constitutional Court ruling in September that put the plan on hold, pending the outcome of a judicial review.
With these judgments in mind, any chance of Outa's success in challenging the matter further are placed in jeopardy.
"I would be very surprised if the SCA [Supreme Court of Appeal] decides to take a different view on this matter," de Vos added.
'We have a strong case'
Outa's legal challenge argues that government did not undertake adequate public consultation on the tolling system, which requires commuters to fit an e-tag that will monitor each time they pass a gantry on the highway and be charged electronically.
Outa chairperson Wayne Duvenage told the M&G he was optimistic, but believes this is the alliance's final legal challenge. "We would be doing society a disservice if we were not to continue fighting and say government can do what it wants without fear of reprisal."
"But if this appeal does fail, I don't see us going any further," Duvenage said.
"We have a strong case," he said. "The members of Outa would rather go for this and put it behind them if it was a lost cause."
The alliance contends the state is legally obligated to publicly debate the funding models of infrastructural improvements on the country's roads.
But currently there is no legislation compelling government to use one method of finance over another.
Although Section 27(4) of the Sanral and National Roads Act clearly requires public consultation on "the physical aspects of the proposed toll road declaration and particularly the situation of the proposed toll plazas," there is no provision to consult on the cost or funding of the project.
As such, de Vos describes Outa's challenge as a "political fight" without "adequate legal footing".
"Government decides this type of thing; it's a political matter," he added.
"If we don't like it, we have a democratic right to vote against the party in government at the next election."
De Vos's view is echoed by advocate Norman Arendse.
"The original judgment that resulted in a court interdict preventing e-tolls from being rolled out overstepped the boundaries in the separation of powers and that is certainly going to weigh on their legal challenge," he said.
The alliance's legal bid
However, Arendse said that in spite of overwhelming odds against a successful court challenge by Outa, the alliance's legal bid is still important.
"It was always going to be a stretch, but this legal conversation must be had as it provides judicial clarity on the separation of powers between the executive, the courts and Parliament," he said.
Advocate Johan Gaum provided further support to this notion.
"Let's see what happens, if all this matter does is facilitate legal certainty then so be it. The more certainty we have from a legal perspective over the separation of powers, the better this country will stand politically," he said.