E-toll interdict trashed

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The interdict against e-tolling, that was imposed by the North Gauteng High Court in April, has been set aside by the Constitutional Court.

The court delivered its judgement today, after an appeal was heard by National Treasury in August against the interdict.

Treasury argued that the interdict should be lifted, because the decision is too far off and the "temporary will become permanent". It explained that the final judgement most likely won't happen before next year.

It presented an urgent application for leave to appeal against the interim interdict, granted in April, to the Opposition to Urban Tolling Alliance (OUTA), restraining the SA National Roads Agency (Sanral) from implementing e-tolling.

The interdict has seen e-tolling suspended, pending the final determination of an application for the review and setting aside of the controversial system.

Separating powers

Deputy chief justice Dikgang Moseneke today explained that the interdict is to be set aside, because of separation of powers.

Only in exceptional cases can the court intervene in such a matter, because of separation of powers.

Treasury in August contended that the application for leave to appeal raises important constitutional issues that are integral to the rule of law and the doctrine of separation of powers. These have wide-ranging consequences for public finance and the national economy, according to the Constitutional Court.

"They submit that an urgent direct appeal to this court is justified, because there is a pressing public interest in the expedited, final determination of the question whether alternative means must, in the interim, be found to fund the GFIP [Gauteng Freeway Improvement Project] should the interim order stand."

OUTA's legal team argued that the decisions under attack are not political, economic or so policy-laden as to warrant judicial deference.

It also said there was no new issue of separation of powers that required 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.”

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

E-toll commencement

For now, the setting aside of the interdict means e-tolling can go ahead until the main case is heard at the High Court, in November.

OUTA in August said Sanral isn'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.

OUTA chairperson Wayne Duvenage said the main case 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 interdict is set aside e-tolling will commence, but only until such time as the review is heard in November.

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.

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