Cape Town - The SA National Roads Agency (Sanral) says it believes there are “constitutional issues of great public importance” at stake, if it is not allowed to toll sections of the N1 and N2 in the Winelands.

The agency is digging in its heels to proceed with the project by filing for leave to appeal the matter in the Constitutional Court. This is despite losing another round in the four-and-a-half year battle against the City of Cape Town in the Supreme Court of Appeal (SCA) last month that found Sanral’s decision-making process to be flawed.

Sanral acting chief executive Koos Smit says at the heart of the appeal is the question of condonation of “an unreasonable delay” on the part of the city in filing its review application in the Western Cape High Court in 2012.

The project had been in the making for more than a decade by then. “It is therefore beneficial for the highest court in the land to decide on these issues. There is a reasonable prospect that the Constitutional Court will come to a different decision,” he told the Cape Argus on Monday.

A necessary project?

Smit said money had already been spent in carrying out certain work on the project. The Winelands toll project was a strategic infrastructure project that was necessary to develop the Western Cape economy.

“The project was conceived to improve the link between the Western Cape and the rest of the country, and substantial time and investment has been put into its development,” said Smit.

In a judgment delivered by Judge Mohammed Navsa on behalf of the full bench of the SCA, the court found the 2014 decision of the Sanral board to declare portions of the freeways toll roads, invalid.

The SCA concurred with the Western Cape High Court that in condoning the delay to the city in filing its review application, it had taken into account some R136 million Sanral said it had spent on the project.

It had also considered the effect of costs to the consortium, even though they did not participate in legal proceedings.

“The project has been in the making for almost two decades and its various phases were premised on information that must by now be dated. That too is a consideration that weighs in favour of the city. In my view, the Western Cape High Court cannot be criticised for granting condonation,” said Judge Navsa.

Wasteful expenditure

Mayoral committee member for transport Brett Herron said that Sanral’s latest plan to appeal the SCA judgment on a technicality that would have required the city to launch its review application within 180 days of becoming aware of the decision to toll the roads, would constitute fruitless and wasteful expenditure.

The city has already spent more than R20m in legal fees on the case.

“Both courts granted the city an extension because it was in the interest of justice to do so. If Sanral was to succeed on this technical point, the impact could be that a tolling project, rotten to the core with flaws and illegality, would be imposed on us,” said Herron.

While Smit said tolling would facilitate the movement of large volumes of export and import freight, business, tourism, recreational and commuter traffic, vital to the national economy, Herron said the city was looking out for the poor.

Western Cape road users would spend R62 billion in toll fees over the next 30 years. “Given the scale of this litigation and Sanral’s stubbornness, no individual or group of residents could have realistically brought this legal challenge,” Herron said.

Cape Argus

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