Government is not yet commenting on when it plans to implement the controversial Gauteng e-tolling system now that the interdict against its rollout has been lifted.
An interdict against e-tolling was imposed by the North Gauteng High Court, in April. The Constitutional Court yesterday delivered its judgement to set aside the interdict, after an appeal was heard by National Treasury, in August.
The interdict, granted after an application by the Opposition to Urban Tolling Alliance (OUTA), saw e-tolling suspended pending the final determination of an application for the review and setting aside of the system.
Appropriate system
Department of Transport director-general George Mahlalela says government welcomes the Constitutional Court's ruling.
"The ruling reaffirms government's conviction that the North Pretoria High Court had erred in its judgement, which interferes with policy-making, a responsibility of the executive.
"Government respects the right of any member of the public to approach the courts to review its decisions and operations within the country's legal framework."
He adds that government remains convinced about the appropriateness of the Gauteng Freeway Improvement Project (GFIP), with e-tolling and the user-pay principle, as the funding mechanism for the country's investment in road infrastructure.
However, apart from saying government will study the judgment and make an announcement on the way forward soon, the department is not yet saying anything about the implementation of e-tolling or its readiness for this.
Voices silenced
OUTA says its concern with the judgement handed down yesterday is that the voices of Gauteng's road users were not heard, but were sacrificed in terms of a legal technicality related to the court's ability to interfere with the executive powers of government.
"While we acknowledge the importance of the separation of powers and appreciate the need for government to govern, we are concerned at how broad-based citizen groups, like OUTA, may be constrained, in the future, from effectively challenging major decisions taken by government, when this is done without the necessary preparation, rationality and proper processes being followed, which may be proven to be fundamentally flawed and almost impossible to reverse."
The decision given yesterday technically grants the SA National Roads Agency (Sanral) an opportunity to launch e-tolling in Gauteng; however, OUTA says much has yet to be done before the agency can do so.
This includes publishing revised tariffs, publishing the final terms and conditions for the e-toll contracts, providing clarity on and formalising the regulations required regarding the e-toll exemptions for qualifying public transport vehicles, finalising regulations for Sanral's e-toll police, and providing clarity on the enforcement method for e-tolling.
During the appeal in August, the legal team representing National Treasury and Sanral said e-tolling can be ready for implementation in two weeks.
"It is important to note that today's decision does not negatively impact, in any way, our current preparation for the High Court review in November," says OUTA. "We continue to encourage road users to be mindful of the implications of purchasing an e-tag in advance of the review."
Violent alternative
The Justice Project of SA (JPSA) says it has acknowledged the setting aside of the interdict with regret and disappointment.
"As much as government doesn't like being interdicted by a court [for] acting in stark contrast to popular public sentiment, it is our belief that the alternative to such court processes is far worse. Although the events which played themselves out in Marikana were aimed at Lonmin, it must be remembered that public disobedience over e-tolling, as threatened by Cosatu [Congress of SA Trade Unions], could very easily take on a similar tone with the e-tolls issue."
The project says this ruling sets a negative precedent, showing that citizens who are stonewalled by government may not turn to the courts for relief, "while those who resort to violence get what they want - or at least close thereto".
"We will see if Sanral will be able to implement e-tolling within two weeks as stated in arguments in court in August, and we will have to wait and see whether citizens roll over and cough up, but one thing is for sure, today is a very sad day for the voice of the people whom democratic processes and now the courts have failed."
Burden shift
The African National Congress Youth League (ANCYL) says it remains resolute that yesterday's judgment does not in any way invalidate any of the issues it has consistently raised against the e-tolls.
"We remain vehemently opposed to the e-tolling system on the basis that the tolls are simply unjustifiably expensive for all commuters and totally unaffordable to the working class, the poor and young people."
The ANCYL also says the state has a responsibility to fund infrastructure development and maintenance through the direct and indirect taxes already levied against the public.
"Demanding further taxes to fund the same objective is tantamount to shifting the burden of delivery from the state to the public. Sanral should not, therefore, overzealously take [yesterday's] judgment as the green light to proceed with the implementation of e-tolls."
Every power
The Freedom Front Plus, the Democratic Alliance and Cosatu have also taken note of the judgement with disappointment.
Cosatu has "warned" government not to even think about implementing e-tolls until consultations with the inert-ministerial committee on the GFIP have been completed. "Should they do so, Cosatu will oppose them with every power we have."
Democratic Alliance Gauteng Caucus leader Jack Bloom says the official opposition is still optimistic that the court case on the merits of the tolls on 26 November will be successful.
"Sanral will find it difficult to implement the e-tolls in the face of widespread public opposition."
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