Joy over e-toll appeal judgment

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Wayne Duvenage, of the Opposition to Urban Tolling Alliance leaves the Pretoria High court after winning leave to appeal. Picture: Bongiwe Mchunu

Pretoria - The Opposition to Urban Tolling Alliance has welcomed a ruling by the High Court in Pretoria yesterday granting it leave to appeal against a previous judgment made by the court.

“(It is) the alliance’s sincere belief that their case to halt e-tolls has strong grounds, which we trust will eventually obtain the ruling that Sanral’s current e-toll plans are illegal,” alliance executive Musa Strachan said. “(The alliance) wishes to thank the thousands of citizens and hundreds of businesses that have contributed to funding this campaign.”

It said it was “mindful” that the SA National Roads Agency Limited (Sanral) could continue with the project and not wait until the appeal was heard in the Supreme Court of Appeal (SCA) in Bloemfontein. “They will have to do so knowing full well that the SCA could rule the scheme as illegal, in which case it may have to be halted,” Strachan said.

Judge Louis Vorster granted the alliance leave to appeal his previous judgment on e-tolling to the Supreme Court of Appeal.

But it didn’t look good when the allliance’s leave to appeal started in the stifling hot court room.

Judge Vorster began the proceedings by saying to the alliance’s advocate Mike Maritz that if he based his judgment on an earlier Constitutional Court judgment, what leg did he have to stand on for an appeal. The men sitting on the alliance’s side of the court all winced at the judge’s question.

The main executives from Sanral were not in the court.

Maritz argued that Vorster had misconstrued the Constitutional Court judgment and that the part that Vorster had quoted was a minority judgement.

Maritz said Sanral’s public consultation process was so flawed it was not fair procedure under the constitution. But, Maritz argued if Judge Vorster’s judgment was not appealed, it meant that the public had no say over decisions the government makes, even over paying “R70 billion or R100bn, or however hundreds of billions this project will finally cost”.

Maritz told Judge Vorster that according to his judgment, Sanral can publish a notice to say a road is being turned into a toll road and that is all the information needed. He said Sanral could pave the roads in gold if they wanted to and the public had no say.

“For instance they can suddenly decide to turn the Old Johannesburg road into a 10-lane highway for R500bn and say nothing about it,” Maritz said.

Sanral’s senior counsel, David Unterhalter, responded saying that this was an unusual case because it had already appeared in the Constitutional Court.

He said that the applicants had changed their case many times.

He said the minority judgment in the Constitutional Court which Judge Vorster based his judgment on was in keeping with the main judgment and was therefore correct.

Unterhalter said the applicant’s case never attempted to challenge Sanral’s policy and if you don’t challenge policy then you need to live with it.

The senior counsel acting on behalf of the Treasury, Jeremy Gauntlett, did not believe there was a reasonable prospect that another court would come to a different conclusion and reopen the public participation process.

Gauntlett agreed with Unterhalter, and said the alliance was trying to argue it was representing the public when it was not..

Granting the order, Judge Vorster said: “The order I make after some consideration is the following:

“Leave is granted to the applicants to appeal to the Supreme Court of Appeal against my previous judgment handed down on 13 December last year.”

He deferred the matter of costs to the SCA. Judge

Vorster did not detail his reasons for the judgment, but said he would provide written reasons when requested.

After the short judgement was given that the case could be appealed, alliance chairman Wayne Duvenage called on the public not to buy e-tags.

He said he expected the appeal process, at the Supreme Court of Appeal in Bloemfontein, to appear before the court quickly as the matter could be seen as urgent.

The DA in Gauteng congratulated the alliance. “It is very encouraging that the Supreme Court of Appeal will now hear this matter,” DA MPL Jack Bloom said.

“It is a vitally important case because it will determine how seriously public views are taken… on e-tolls and any other government decision, with far-reaching impact.”

Department of Transport spokesman Tiyani Rikhotso said the government was not despondent as result of the outcome of the appeal application. “We remain adamant that there’s nothing in the rule book that government may have overlooked with regard to the Gauteng Freeway Improvement Project,” he said. “The three-day court review process in November provided a platform for all parties concerned hence the subsequent verdict by the court.”

Pretoria News Weekend


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