Wednesday 25 September marks another step in the decision-making process to determine whether e-tolling goes ahead on Gauteng’s roads.
Over the next two days, the Supreme Court of Appeal will hear the Opposition to Urban Tolling Alliance case for the court to scrap a Pretoria High Court judgment in favour of the government, ruling that tolling can go ahead.
The SA National Roads Agency Limited and the Treasury will be arguing that this decision should be upheld. After this, it could take days or weeks for the appeal judgment.
Outa chairman Wayne Duvenage said it was the largest public-funded court battle in South Africa’s history. The organisation has raised R11.4 million, of which R8.6 million, or 76 percent, has come from 357 businesses and R2.8 million, or 24 percent, from individuals or families.
But this still leaves Outa short of about R1 million to cover all its costs.
Outa’s heads of argument cite a lack of procedural fairness, the legality of the roads being tolled, the failure to consider the costs of toll collection, the fact that the 2006 toll collection cost estimate was patently wrong, the unreasonableness and practical impossibility of enforcement and the infringement of section 25 of the constitution.
The lack of procedural fairness argument looks at the Promotion of Administrative Justice Act, which requires that people be given an opportunity to take part in decisions that will affect them, and allow people the chance to influence the outcome of those decisions.
Outa says Sanral should have supplied the public with information about the upgrade of the roads, publicised the cost of the upgrade and its intention to toll the roads, and give the anticipated tolling tariff. It maintains Sanral did not do this, and by placing only a few separate notices in newspapers about roads becoming toll roads, had failed to meet the requirements of the act.
LACK OF PUBLIC CONSULTATION
The alliance’s main argument is that because of this lack of proper public consultation, the whole project should be seen as illegal.
They also say in their heads of argument that then minister of transport Jeff Radebe had not taken full account of the costs of toll collection before approving the project.
The cost the minister looked at was a 2006 estimate of R200 million a year. This equates to only 24 percent of the capital amount, according to the papers.
Outa says that according to Sanral, the toll collection cost over 24 years would be R18 billion, or 89 percent, of the capital cost of the project. The applicants say this figure is actually closer to R1.2 billion a year, or 149 percent of the capital expenditure.
It also argues that toll collection will be practically impossible to enforce as the world average of seven percent non-compliance will mean about 230 000 defaulters a month, which could escalate to 500 000 a month. It says this will bog down the courts, which are not equipped to handle such numbers.
The final argument is that by tolling the roads, Sanral will be limiting the right to property because many people will not be able to afford the toll fees.
Sanral’s response looks at why Outa took so long to bring its court application, arguing that e-tolling had been planned back in 2006.
It says the decision to fund the Gauteng Freeway Improvement Project through tolling was complex and therefore taken by the executive, that the Constitutional Court found that the courts showed deference to the executive, that Sanral complied with the Promotion of Administrative Justice Act, the minister properly considered the cost of toll collection, and that e-tolling is practically possible.
Sanral claims that e-tolling is a policy decision that lies outside the court’s review.
Sanral argues that the roads needed upgrading, but tax resources were needed elsewhere and it was decided to fund the work through tolling.
Studies it conducted show that tolling would only impact households who could afford it and that it made its plans known to groups such as the Automobile Association and the South African Vehicle Renting and Leasing Association.
Sanral says it published notices of the intention to toll in newspapers and there had been some responses from the public to those notices as well as media reports about tolling.
Sanral adds it did everything it needed to do to comply with the Promotion of Administrative Justice Act in terms of public consultation and that members of Outa were aware of tolling.
Sanral’s papers then make use of an affidavit by Radebe which says he considered the “cost of toll collection as one factor among a myriad considerations which had to be weighed and balanced in the final decision”.
Sanral argues that if tolling is set aside, it will have consequences for Gauteng’s transport infrastructure and be a risk to the economy. - The Star