The Constitutional Court reserved judgment on Wednesday on whether it should overturn an interim interdict preventing e-tolling in Gauteng from going ahead.<\/p>\n
“We reserve judgment and the court is adjourned,” Chief Justice Mogoeng Mogoeng said.<\/p>\n
Opposition to Urban Tolling Alliance (Outa) lawyer Alistair Franklin told the court the SA National Roads Agency Ltd (Sanral) choice of e-tolling as a method of funding caused it more damage than a court order that halted the system.<\/p>\n
Franklin said the interim interdict was not the cause of “irreparable harm” to the road agency.<\/p>\n
It rather suffered “self-imposed” harm by not looking at alternative funding models.<\/p>\n
“There are other methods to collect the money, such as fuel levies,” he said.<\/p>\n
“The disproportionate cost of tolling is irrational when there is available to the agency [Sanral] another choice for funding which does not involve any costs.”<\/p>\n
His arguments were met by a considerable amount of queries from the judges.<\/p>\n
The High Court in Pretoria granted Outa an interdict against e-tolling on April 28. It instructed that a full review needed to be carried out before electronic tolling of Gauteng’s highways could be put into effect.<\/p>\n
Sanral and National Treasury are appealing against the court order.<\/p>\n
The agency argued that delays in the project due to the court’s order prevented it from paying off debts incurred in building gantries.<\/p>\n
Franklin said on Wednesday this argument did not hold water as there were four postponements prior to Outa’s application for the interdict.<\/p>\n
“It appears on the facts that government was quite prepared to postpone e-tolling at its own volition.<\/p>\n
“But if there is an impediment to e-tolling that is not of its own making, then it suggests that that is calamitous and will result in irreparable harm.”<\/p>\n
Franklin said Sanral was not ready to put the project into effect.<\/p>\n
“Sanral was not ready [at the time of the interdict] and is still not ready to commence e-tolling.”<\/p>\n
He said this was reflected by the absence a new tariff notice.<\/p>\n
Though Sanral said public transport would be exempted from e-tolling, these exemptions had not been published.<\/p>\n
Sanral had also not distinguished between the driver, user and owner of a vehicle that could be tolled.<\/p>\n
Sanral lawyer David Unterhalter SC argued that the costs of collection for e-tolling should have been examined holistically.<\/p>\n
“You cannot take a general policy framework and allow it to [be] subordinated to a single economic ratio,” he said.<\/p>\n
“It is impossible to fairly assess the costs for collection against all the other costs of the project.”<\/p>\n
Unterhalter said the rate of non-compliance was not a proper reason for a review of the project.<\/p>\n
“There will be some measure of deviance… [but] it is a criminal offence to use a road and not pay for it,” he said.<\/p>\n
“This is not a proper ground for attacking [the e-toll system]… Ask if this is a system that is lawful — and it is,” he said.<\/p>\n
Unterhalter said there were measures to manage deviance, and those who did not comply would face criminal sanctions.<\/p>\n
However, if people argued that they did not use the road, they could have a defence.<\/p>\n
He said it was not necessary to prosecute every single person, but to merely make an example to encourage compliance.<\/p>\n
He admitted that there were mistakes and faults, but the system was ready to begin for income to be generated.<\/p>\n
Unterhalter argued that the high court had not shown restraint in its judgment, and that there was a “threshold” that needed to be crossed before a court could intervene on a policy matter.<\/p>\n
Deputy Chief Justice Dikgang Moseneke said courts needed to tread carefully on policy matters, but that nothing was beyond review since it was a constitutional right.<\/p>\n
National Treasury lawyer Jeremy Gauntlett said High Court Judge Bill Prinsloo did not provide adequate reasons for his decision to grant the interdict.<\/p>\n
“With respect, what he does… is tick the individual interdict boxes, and to say each time that it [the reason] is there.”<\/p>\n
He said it was difficult for the parties to determine how he had come to his conclusions.<\/p>\n
Gauntlett said it was “wholly unrealistic” to grant an interdict against the project when it was ready to begin.<\/p>\n
“I know it’s all been built, what this fight about is how it is paid [for].”<\/p>\n
He likened this to having built a stadium and reviewing it merely based on how its turnstiles worked.<\/p>\n
Gauntlett said the interdict, by acknowledging that government had decided to take-on Sanral’s debts, would unfairly impact the entire country’s economy.<\/p>\n
“Government ends up robbing Peter to pay Paul. Where Paul are road users who have claimed this wonderful world-class transport facility, and Peter are the people in other provinces.”<\/p>\n
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