Gauteng's ambitious R20 billion e-tolling project will now have to go through several legal hurdles before it can be implemented even if courts eventually rule in favour of the South African National Roads Agency Limited (Sanral).
On Saturday, the North Gauteng High Court interdicted the agency from implementing electronic tolls on the province's freeways pending a full court review of the issue after the Opposition to Urban Tolling Alliance (OUTA) requested an urgent interdict.
As a result, it will be about two months before the matter is heard in court, but either party can appeal as high as the Constitutional Court, delaying implementation indefinitely.
Government decided in 2007, in terms of provisions of the Sanral Act and after “extensive planning and consultation”, to finance the construction and maintenance of an improved Gauteng freeway through an electronic tolling system.
After considering public representations during 2011 regarding the proposed toll fees, Cabinet agreed that a contribution of R5.75 billion should be made from the fiscus to the project. However, opposition to the cost of driving on Gauteng's freeways has been mounting, leading to Opposition to Urban Tolling Alliance's (OUTA's) court application and several protests.
OUTA argued the matter was urgent and that Sanral was not ready to implement the system. Judge Bill Prinsloo found that the matter was urgent enough to hear on Wednesday and arguments around an interdict were heard that afternoon and Thursday.
Long road
In a statement, OUTA says the interdict against the launch, which was meant to take place today, will allow time for the full matter and case to be heard in court.
The alliance says a “much longer and fierce battle now lays ahead as the volumes of documentation will be argued in court” as it endeavours to prove that e-tolling is an “unjustified, irrational and punitive tax on the citizens of South Africa”.
“We are pleased that Judge Prinsloo has decided it would be prudent to keep the e-toll 'horse in the stable' until this matter is reviewed in full, notwithstanding the recent decision to halt the launch for another month.”
Last Thursday, the Department of Transport said implementation would be halted for a month after being requested to postpone the launch by the Congress of SA Trade Unions (Cosatu) and the ruling African National Congress (ANC).
OUTA does not oppose the Gauteng Freeway Improvement Project (GFIP), as there is a need to improve infrastructure, but objects to the implementation of an “unacceptably expensive and administratively burdensome tolling system,” it says.
The alliance, which is set to launch a fund-raising campaign, is hopeful that there will be a resolution before the court review. “If this is not the case, we will continue to represent South African road users' interests.”
Legal battles
Democratic Alliance Gauteng transport spokesperson Neil Campbell explains that Sanral cannot charge for use of the freeways until the review process has happened. However, he points out that the matter could be argued all the way to the Constitutional Court, which could postpone implementation for some time.
Campbell says the review matter may be heard in the middle of the year as the review court does not have as full a roll as others, but parties could continue appealing. He says the “legal battle could draw on for many years”.
“Although only a prima facie case has been proved and much work still lies ahead for the OUTA team, this ruling at least opens the door for stopping this inexplicably costly toll collection system.”
The DA is optimistic that the review court will find that the most cost effective method of paying for the GFI, and other urban tolling projects, is through a dedicated fuel levy, Campbell says.
Howard Dembovsky, chairman for the Justice Project South Africa, explains the issue could be settled out of court, but failing that is on hold indefinitely until all legal avenues are exhausted. He says while the improvements must be paid for, there must be a different mechanism.
Cosatu spokesman Patrick Craven says it will continue to work with the ANC to find an alternate mechanism and will watch the pending review. He adds Cosatu may join OUTA through an application to be made a friend of the court.
The Department of Transport said in a statement it noted and respected the judgment, which it would review “thoroughly” before deciding on the next course of action.
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