E-tolling: Govt has double standards

Government is quite prepared to postpone e-tolling of its own volition, but if the delay is not on its own terms it sees it as “calamitous”. This is evident in the fact that it postponed the controversial system about four times previously and again in April.

This was the argument made by lawyer Alastair Franklin, at the Constitutional Court, in Johannesburg yesterday. He was representing the Opposition to Urban Tolling Alliance (OUTA) at the hearing into National Treasury's appeal against an interdict that was earlier granted against the Gauteng e-tolling system.

“The decision by government itself to delay the implementation of e-tolling on numerous occasions has had a direct bearing on the Moody's rating of the SA National Roads Agency's (Sanral's) bonds in advance of OUTA lodging any legal action,” said the alliance.

The North Gauteng High Court in April granted OUTA an interdict against e-tolling, since the alliance argued that it is too inefficient and cost-heavy. National Treasury subsequently filed an urgent appeal at the Constitutional Court.

Franklin said the previous postponements by government mean treasury cannot blame this specific delay - resulting from the interdict - for causing irreparable harm to Sanral.

However, Justice Johan Froneman noted the difference between delays for political processes and delays for legal processes.

Justice Johann van der Westhuizen also said there is another angle to consider. If government postponed in April for discussion on the matter then the need for a legal move to interdict e-tolling must be questioned. He gave the example of a custody case where the parents begin talking on their own and how this negates the need for the court to be involved.

Franklin said what is at issue is the right to have a lawful tolling system, or to interdict an unlawful system.

Franklin said the point is that Sanral wasn't ready to implement e-tolling. The criteria for exemptions promised to public transport vehicles have not yet been formalised, there are no e-toll enforcement procedures in place and there are no finalised tariffs as yet, since the Department of Transport withdrew these on 31 May for further review.

Franklin also said there is no new issue of separation of powers that requires the Constitutional Court's urgent attention, as argued by National Treasury. “There is no warrant. This court and other courts have long established rules for judicial reviews. This case should be the same.”

He agreed that the issue of separation of powers is complicated, but said the law regarding interim interdicts has been around for long.

The lawyer admitted that no part of the High Court judgement dealt with separation of powers. However, he argued the court was under immense time pressure since it basically heard the case over three days and had only one day to prepare the judgement.

However, deputy chief justice Dikgang Moseneke said if the court is going to stop a project of this magnitude in its tracks, it needs to show it has applied its mind.

David Unterhalter, representing treasury, said ring-fencing the fuel levy for the Gauteng Freeway Improvement Project (GFIP) is not efficient. However, Moseneke challenged this by saying e-tolling isn't efficient either.

Unterhalter explained that the complaint against e-tolling is that collection costs in relation to the initial capital cost are too high. However, the cost of collection must be looked at in relation to all costs involved, including maintenance costs.

“The collection cost cannot be looked at in isolation.” The lawyer said one cannot look at chosen relation. “You can't examine a decision taken on a multi-factoral basis with just one ratio. The review challenge cannot be brought on selected figures. Mere showing of economic efficiency is not a basis for a court challenge,” said Unterhalter.

He also argued that OUTA should have come forward at an earlier stage since its alliance members were part of the e-toll discussions since 2008.

“You can't just slam the door because people are late,” said Moseneke.

Chief justice Mogoeng Mogoeng said the court reserves judgement and gave no indication of when a ruling would be made.

OUTA chairperson Wayne Duvenage says it was a tough day in court and Franklin responded as best he could.

“The big issue, the main case for us is the review in November. We still believe strongly in our case. We have a strong case and good evidence, which is why the interdict was granted. We have to show that e-tolling is wrong for this country and for Johannesburg.”

He previously said if the constitutional court finds in favour of Sanral, this may only allow the interdict to be set aside and for tolling to commence, until such time as the review is heard in November.

OUTA filed its supplementary affidavit (Part B of the application) in mid-July and now awaits the respondents' answering affidavits to be lodged by 17 September, after which time OUTA will produce its replying affidavit by 1 October, in time for the heads of argument to be filed in the High Court by 22 October, giving the judge time to prepare for the hearing on 26 November.

Duvenage said yesterday's hearing represented an important case for SA's democracy.

OUTA explained that civil society must be able to approach the courts when the rights of citizens have been or will be violated by government action, and the courts, in turn, must remain fully empowered to provide SA's citizens with effective protection.

“The current appeal by treasury threatens to weaken this constitutionally-guaranteed remedy available to civil society, which is so essential for constitutional democracy and the rule of law.”