The High Court in Pretoria has granted the Opposition to Urban Tolling Alliance leave to appeal to the Supreme Court of Appeal (SCA) against a previous judgment made by the high court.
“The order I make after some consideration is the following: leave is granted to the applicants to appeal to the Supreme Court of Appeal against my previous judgment handed down on 13 December last year,” Judge Louis Vorster said.
He deferred the matter of costs to the SCA.
Vorster did not detail his reasons for the judgment, but said he would provide written reasons when requested.
Outa argued earlier that Vorster had misinterpreted a section of the SA National Roads Agency Limited (Sanral) Act on public consultation to reach his ruling that e-tolling could proceed.
Mike Maritz, for Outa, argued before Vorster that he had “erred fundamentally” in his interpretation of section 27 (4) of the Sanral Act.
He said Vorster had not engaged with the argument against a lack of “procedural fairness” in the way Sanral had informed the public about e-tolling.
“That definition of what is required under procedural fairness is not satisfied [in the judgment] at all,” Maritz said.
“It is the public at large who are adversely affected to the tune of R70 billion… but under your lordship’s interpretation they have no entitlement… they have no say, they just have to pay.”
Vorster ruled in December that e-tolling could proceed because the Gauteng Freeway Improvement Project had been lawfully instituted. He dismissed Outa’s application with costs.
Maritz argued that the lack of fairness constituted a contradiction of aspects of the Constitution.
In his judgment, Vorster had said only the physical aspects of the project were up for public participation, and not the costs.
Maritz said it would follow from the judgment that Sanral could have paved the road in gold and charged R50,000 a person through e-tolling, without having to tell them about it.
He argued that Vorster had relied on a minority ruling of the Constitutional Court regarding an urgent interdict which halted the process, which was not correct.
“The ruling dealt with only one ground of unreasonableness [of the e-tolling project],” Maritz said. “It didn’t deal with any other grounds for review.”
In September, the Constitutional Court overturned an interim order putting the e-tolling project on hold.
It found that the High Court in Pretoria had not considered the separation of powers between the high court and the executive in its ruling on April 28.
Maritz was questioned by Vorster about the idea of separation of powers.
“You don’t see Sars [the SA Revenue Service] publishing tables for public participation on whether these scales of taxation would be fair or not,” Vorster said.
Maritz said the separation of powers did not “immunise” certain state functions from judicial scrutiny.
On Friday, David Unterhalter, for Sanral, argued in favour of Vorster’s judgment.
He said Outa had argued in the Constitutional Court in favour of an urgent interdict against e-tolling based on “procedural aspects”, but was now trying to reduce the significance of that court’s judgment.
“Your lordship has properly interpreted the Sanral Act,” he said.
Unterhalter said the application for leave to appeal should not be granted, since the SCA should not “go around” the Constitutional Court judgment.
“There is no basis for this appeal,” he said.
Unterhalter said there was no reason to “burden another court” with the e-tolling issue.
“Part of what has motivated this [Outa’s application] is the matter of costs,” he said.
He said the “heart of the matter” for Outa was companies with commercial interests.
Jeremy Gauntlett, for the Treasury agreed with Unterhalter, and said Outa was trying to argue it was representing the public when it was not.
Outa had previously argued that it should not be liable for costs since it represented the public.
“We submit that there is no… [reason] that another court will come to a different conclusion on a cost basis,” Gauntlett said.
He argued that the minority ruling of the Constitutional Court used by Vorster in his previous judgment could not be regarded as such since it was in agreement with the main judgment.