The Opposition to Urban Tolling Alliance (Outa) is considering appealing against a decision by North Gauteng High Court judge Louis Vorster that last year quashed a bid to stop the controversial e-tolling project from going ahead.
The body, which went to court along with the South African Vehicle Renting and Leasing Association, the QuadPara Association of SA, and the South African National Consumer Union, has until next Wednesday to lodge papers to request leave to appeal, the first step in the process.
Outa will seek mandates from its members to appeal. "The judgement should be appealed in order to vindicate and protect the rule of law," it says.
Outa and its legal team have met and "concluded that the judgement is clearly wrong in several material respects and should not go unchallenged". Vorster ruled that the proper consultation process was followed as far as it was relevant, and said the method of paying for the controversial scheme was not an issue.
Meaningless
In a statement issued by Outa chairman Wayne Duvenage, the civil society body says the judge's interpretation of the South African National Roads Agency (Sanral) Act "effectively renders public participation meaningless and is out of line with other Constitutional Court decisions on the right to fair administrative action".
Vorster ruled that the issue of funding was not open to public consultation as it is determined by government policy. He added that the only area that was open to consultation related to physical aspects, such as the proposed locations of the gantries.
In addition, Vorster said it is "common cause" that toll road declarations were published in the Government Gazette and in newspapers, which was adequate. The judge said the toll collection and the project was lawful, and did not amount to unlawful deprivation of property.
Vorster noted that Cabinet approved the Gauteng Freeway Improvement Project in July 2007, and the then transport minister announced its launch that October.
Outa argues that Vorster did not consider many of the key grounds of review raised by Outa "at all", including that the transport minister did not consider the full costs of e-toll collection, and the fact that "materially incorrect information" was placed before the minister on the costs of e-toll collection and the "disproportionate costs of e-tolling as a method of funding".
Harmful to all
The civil society body also argues that Vorster should not have awarded costs against the applicants, which will run into millions. Vorster awarded costs in favour of six respondents - National Treasury, Sanral, National Department of Transport, the MEC for roads and transport in Gauteng, as well as the minister and DG for water and environmental affairs - which includes a failed Constitutional Court bid.
The applicants had asked the judge to set aside government's decision to declare freeways in and around Gauteng as toll roads, and set up electronic gantries. They also wanted permission to lodge the application, despite it being outside of the time limits. The ruling follows an interdict against tolls, which was later thrown out by the Constitutional Court.
"The costs order is a very harmful precedent that will have a negative and dissuasive impact on public interest litigation and the challenging - where necessary - of government action by civil society, which is a critical and much-needed feature of a constitutional democracy," says Outa.
Transport spokesman Tiyani Rikhotso says Outa has the constitutional right to appeal, but as far as he is aware, no papers have yet been filed. He says the department will comment further when Outa takes action.
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