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High noon for e-tolls in Concourt

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IOL mot pic aug15 e-tolling

INL SA

The e-toll board on a Gauteng freeway waits to be activated and for its tariffs to be raised. The Constitutional Court will hear today from the government and opposition to e-tolling, and will have to decide on the future of the divisive collection procedure. Picture: Thobile Mathonsi

Gauteng commuters and government policy-makers will be keeping a close watch on the Constitutional Court today (August 15) as it hears the e-toll dispute.

On one side is the government, represented mainly by the National Treasury and the SA National Roads Agency Ltd, and on the other is a group led by the Opposition to Urban Tolling Alliance.

Two issues are at stake: Will there still be a review of the e-toll process and will motorists ultimately pay e-tolls on the newly upgraded Gauteng freeways, or must the government find other funding?

And then there is the crucial issue of just how much courts may intervene in government policy decisions, such as the cabinet’s decision to fund the upgrade through e-tolling.

The upgrade to the roads is largely finished, and the cost was presented to the public as about R20 billion. Public anger - represented by the alliance - grew over the high cost of the e-tolls, the complicated payment process and the secrecy over the upgrade’s full costs.

The true costs emerged only in May.

Sanral’s court papers listed this as R89.722 billion over 24 years. This includes: R21 billion in capital costs, R18 billion to collect tolls, R11billion for maintenance and R38 billion in interest.

The alliance challenged Sanral over the e-toll process in the Pretoria High Court.

The National Treasury joined in, saying that not tolling would be financially disastrous for Sanral and the country.

On April 28, two days before e-tolling was to start, the high court issued an interim interdict suspending e-tolling pending a review, now set for November. The Treasury and Sanral then appealed directly to the Concourt to overturn the interdict.

Both sides have filed legal argument and the hearing is expected to take one day.

The ROLE PLAYERS

The National Treasury, the South African National Roads Agency Ltd, the minister of transport, the Gauteng MEC of roads and transport, the minister of water and environmental affairs, and the director-general of the Department of Water and Environmental Affairs. This team is led by the Treasury and Sanral.

The five respondents:

The Opposition to Urban Tolling Alliance, the SA Vehicle Renting and Leasing Association, Quadpara Association of SA, the SA National Consumer Union and the National Consumer Commission. This team is led by the alliance.

The extras:

AfriForum: Applied to be an amicus curiae (friend of the court) but was turned down because it got its paperwork wrong.

Road Freight Association: Applied to intervene; this application was to be heard today with the main matter.

DA: Applied to be an amicus curiae; this was turned down.

IN A NUTSHELL: THE NATIONAL TREASURY’S ARGUMENT

The case raises “a constitutional issue of high importance”.

It questions whether the Pretoria High Court made the right decision when it issued the interim interdict, aimed at a cabinet policy decision five years ago to implement e-tolling in terms of the user-pays principle.

The Treasury also argues that courts should not grant such interdicts unless “strictly necessary” on “compelling facts”, but that the Pretoria High Court ignored this.

SANRAL’S ARGUMENT

The issues involve whether the high court’s granting of the interim interdict was “inconsistent with the principle of the separation of powers”, and whether the court “applied the correct test”, and if it did, whether “its application of that test was correct given the nature of the decisions under attack in the review”.

Sanral argues that the case raises a constitutional issue, and it’s in the interests of justice to appeal directly to the Concourt because “the interdict constitutes an unprecedented intrusion into the executive domain and has signi- ficantly undermined Sanral and the government’s fiscal planning and its policy of revenue procurement and allocation”.

Sanral says that having to go through the Supreme Court of Appeal first would “unduly prolong the harm” being suffered as a result of the interdict.

OPPOSITION TO URBAN TOLLING ALLIANCE’S ARGUMENT

Leave to appeal an interim order should be granted only in exceptional circumstances, which it says is not the case here. The alliance opposes the appeal itself, saying it had established in the Pretoria High Court a prima facie right to the review and suspension of e-tolling.

“Neither the minister of transport nor Sanral, when making the decisions which are the subject of this review, properly considered the true costs of the collection of e-tolls, a highly relevant consideration; no attention was paid by the relevant decision-makers to the fact that the system of e-tolls is unworkable, because enforcement is practically impossible; and proper notice of the administrative decision was not given because members of the public were at no time given proper notice of the amount of tolls which were to be levied,” the alliance says.

“The information placed before the minister of transport before he made his decision was misleading because it created the impression that adequate transport alternatives would be provided. The environmental authorisations sought by Sanral… were vitiated by the fact that the sixth respondent (the minister of water and environmental affairs), when granting them, did not consider the socio-economic impacts…

“The record also shows that the balance of convenience favoured the respondents: the imposition of e-tolls pending the finalisation of the review would cause financial hardship and extreme prejudice to many of the users of the road… By contrast, the dire financial consequences postulated by the applicants [the government] if the interim interdict is granted but the review ultimately dismissed were not substantiated in their papers.”

THE ROAD FREIGHT ASSOCIATION’S ARGUMENT

The decision to toll “is unlawful because the regulatory framework that purportedly legitimates it is unconstitutional and consequently invalid”. It says the government improperly handed Sanral rights and policing powers which are the state’s preserve. - The Star

14-YEAR TIMELINE OF SORRY SAGA

April 1998: Gauteng produces policy document on toll road strategy.

September 2006: Gauteng Department of Transport and Sanral produce report on Gauteng Freeway Improvement Project.

May 2007: Sanral’s notice of intention to apply for GFIP environmental authorisations.

October 2007: Transport minister announces GFIP launch.

October 2007: Sanral publishes notices of intent to toll on GFIP.

November 2007: Environmental authorisations for upgrades.

February 2008: Transport minister approves GFIP tolling.

April 2008: Sanral publishes final notice of intent to toll.

May 2008: Sanral awards GFIP contracts.

June 2008: Construction starts on GFIP phase 1.

July 2008: GFIP roads declared national roads and toll roads.

April 2009: Sanral invites bids for e-toll system.

September 2009: Construction of e-toll gantries starts.

February 2011: First toll tariffs issued; two weeks later, transport minister suspends implementation of tolling.

August 2011: The cabinet approves new e-toll tariffs.

October 2011: Transport minister postpones e-tolling; Sanral says e-tolling will start in February.

November 2011: Sanral starts e-toll registration.

January 2012: Sanral says e-tolling won’t start in February.

February 2012: Moody’s downgrades Sanral over e-toll uncertainty.

March 2012: Opposition to Urban Tolling Alliance challenges e-tolls.

April 28, 2012: Pretoria High Court issues interim interdict suspending e-tolling pending a review.

April 30, 2012: The date e-tolling was due to start.

May 21, 2012: The Treasury and Sanral appeal to Constitutional Court. – Source: Sanral’s court papers

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