Outa’s e-toll litigation dead end: A lesson in proper political work

The long-running legal saga concerning seven toll roads around Pretoria and Johannesburg has finally come to a dead end for the Opposition to Urban Tolling Alliance (Outa).

After numerous court applications before the North Gauteng High Court and the Constitutional Court, the Supreme Court of Appeal has now spoken definitively and it is unlikely that further litigation to prevent the e-toll system from being implemented will be forthcoming.

The major benefit of all these hearings, apart from redistribution to the legal community, is the lessons they hold for those who seek to blur litigation with political activity.

The judgment of the appeal court, written by Judge Fritz Brand, deserves careful examination. To recap: Outa, having lost its application for an interim interdict before the Constitutional Court, shifted the focus of its challenge to procedural unfairness. It contended that, in implementing the e-tolling system, the authorities failed to comply with proper notice and comment procedures that would have allowed for meaningful participation.

It also contended that the tolling system amounted to an unlawful deprivation of rights to property; that is by way of the contribution which will be required by motorists to use the roads. It argued that a decision to impose e-tolling was unreasonable because it would incur excessive operational costs and, further, it would prove to be practically impossible to enforce the system.

The court first dealt with the question of the so-called delay rule; that is, whether Outa had unreasonably delayed bringing its challenge before the court. It appeared that all the opponents to e-tolling knew of the decision to introduce e-tolling by no later than February 1 2011, yet Outa only launched its application on March 23 2012.

Brand considered that Outa's explanation for its delay was unacceptable. He noted that five years had elapsed since the decisions to implement an e-tolling system had been taken. During this period, "vast and significant upgrades to highways and related infrastructures had been completed. By all accounts these upgraded roads are truly magnificent. The advantages are enjoyed primarily by the motorists of Gauteng, but they also benefit the economy of the country as a whole."

The South African National Roads Agency (Sanral) contended that if the decisions to implement e-tolling had been challenged at the outset, the R20-billion loan that was raised to pay for the upgrade would not have been incurred because faced with an immediate challenge, the roads would not have been built.

If Sanral were not able to obtain the anticipated toll income of R200-million a month, it would not be able to service the interest on its loans. In turn, this would lead to a further downgrading by the rating agencies, which would make it almost impossible for Sanral to borrow money in the future.

Brand emphasised the importance of judicial decisions that detrimentally impact the treasury. If Sanral is unable to service the R20-billion loan, the treasury would have to meet the guarantee. This will then have a serious effect on funding for healthcare, educators, pensioners and those dependent on social grants. The judge then said: "What we do know, however, is that reordering of public resources inevitably has a polycentric effect."

By "polycentric" the court meant that a judicial decision to grant a certain order may hold grave implications for other constituencies in circumstances that could not be predicted by the court.

When applied to the delay rule, the doctrine of unpredictable consequences cautions a court not to attempt to "undo history and dismantle the implementation of decisions, which dismantling would have consequences for society".

This judgment should serve as a clear warning to litigants and judges to be careful about becoming involved in cases that are not suitable for judicial determination. Increasingly, South African courts are approached to solve political disputes, which are the subject matter of political contest but are not suitable for adjudication. Judges should not be running the country. They do not have the expertise to make decisions of a kind that hold massive distributional consequences for significant sections of the population who are not before their courts.

For example, if the initial decision in favour of Outa had been upheld, it would have cost the treasury billions of rands and could have resulted in a reconfiguration of significant elements of the budget designed to deal with the poor.

Cosatu and other elements of civil society should exert political pressure on the government to alter decisions such as e-tolling or implementation of elements of social policy to which the government has been committed.

But that is a matter for politics. The more the courts are drawn into these polycentric questions, the more the legitimacy of the institution is ultimately eroded.

The lengthy and costly Outa litigation should never have replaced the kind of political work that is required to get the government to change its policy. Its legacy is a judgment that might guide courts in the future to where the balance may be struck between judicial decision-making and political work .

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