In a case certain to be watched closely by many South Africans, the Democratic Alliance (DA) began its court challenge on Tuesday of the constitutionality of the e-tolling Bill passed by Parliament.
The DA Gauteng premier candidate Mmusi Maimane and DA Western Cape leader Ivan Meyer arrived to represent the party in the high court in Cape Town.
"We are feeling very good about this case," said Maimane, shortly before heading into court. "We have had awful administrative problems in Gauteng with e-tolling. It has been appalling. Among the people getting bills for e-tolling are children."
Maimane said he came to court to represent Gauteng residents, who have expressed an overwhelming opposition to e-tolling.
The DA will claim in court that the Transport Laws and Related Matters Amendment Bill was incorrectly passed by Parliament and signed into law by President Jacob Zuma.
If the DA wins its case, the Bill could be sent back to Parliament and this could affect residents in Gauteng, where e-tolling has already been implemented, as well as residents in the Western Cape, where Sanral, or the South African National Roads Agency Limited, proposes to implement a N1/N2 Winelands toll highway project.
In the event the DA does win the case, the legal matter will be referred to the Constitutional Court.
Zuma as President of South Africa is cited as one of the five respondents in the case.
Impact on socioeconomic conditions
In its founding affidavit, the chairperson of the federal executive of the DA, MP James Selfe, said the party's parliamentary representatives believe that the DA has a constitutional duty to bring this challenge to what it contends is the unconstitutional and therefore unlawful passing of an Act of Parliament.
"In bringing this challenge, the DA is therefore not only acting in its own interests – as a political party with representation in Parliament – but also in the interests of its members and the public."
Selfe wrote that the application concerns the constitutional validity of the Transport Laws and Related Matters Amendment Act 3 of 2013, referred to as the amendment Act, which the DA contends was not enacted in accordance with the correct procedure provided in the Constitution.
"The amendment Act enables Sanral to introduce electronic toll collection systems on declared toll roads throughout the country," Selfe wrote. "In particular, the DA contends that the amendment Act ought to have been passed by Parliament in accordance with the procedures set out in section 76 of the Constitution, and not section 75. The reason for this contention is that the provisions of the amendment Act, in substantial measure, fall within concurrent provincial legislative competences."
As the amendment Act recognises that establishing a toll road will have an impact on the socioeconomic conditions of the surrounding areas, said Selfe.
"It will, most obviously, affect which roads people choose to use. That applies not only to ordinary commuters but to commercial vehicles transporting goods," he wrote in his affidavit. "The possibility of toll roads will manifestly affect the manner in which a province legislates on public transport and road traffic regulation."
Selfe said that provincial regional development legislation will naturally be affected by the possibility that a national agency could declare a road in the province a toll road.
"Establishing a toll road could affect trade because it will determine whether particular areas of the province can cheaply and efficiently transport goods within and out the province," he wrote. "It will affect the environment by pushing traffic onto alternative roads, creating additional air and noise pollution in different areas."
The consequences of toll roads in general are also present with e-tolls, said Selfe. "The e-toll system is integral to the effective functioning of certain toll roads, in particular at this stage, those forming part of the Gauteng Freeway Improvement Project, although it is anticipated that similar projects will be implemented in other provinces as well."
The case continues in the high court on Tuesday and Wednesday.