E-toll ruling on knife edge

24/04/2012 Motorists cherr on DA members bearing non e-toll posters as they protes outside the Pretoria High Court while the e-Toll hearing is in session. Picture: Phill Magakoe

24/04/2012 Motorists cherr on DA members bearing non e-toll posters as they protes outside the Pretoria High Court while the e-Toll hearing is in session. Picture: Phill Magakoe

Published Apr 25, 2012

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 Gauteng motorists will have to wait a bit before finding out if an urgent interdict to postpone e-tolling has been successful.

After hearing an entire day of arguments for and against the urgency of the application to stop the e-tolls, Judge Bill Prinsloo on Tuesday decided to hear replying affidavits on Wednesday and to make his judgment after that.

Before argument got under way, National Treasury joined Sanral and the Department of Transport to support the case for e-tolling, while AfriForum joined in opposition to the e-tolling.

The Road Accident Fund withdrew as a friend of the court.

Cosatu had a legal representative at court, Paul Kennedy SC, who said he was there to observe the case in order to consider joining in at a later stage.

Arguing why the case was not urgent, Sanral’s legal representative, David Unterhalter SC, argued that the freeways were declared toll roads in 2008, so why the late application?

But the Opposition to Urban Tolling Alliance (Outa) argued that Sanral had not revealed all the information, such as tariffs and other legalities, before February this year, and that the court needed to consider this as the public’s last chance to have what may be an illegal system done away with.

The first order of the court was whether an extra affidavit which the alliance submitted regarding the late publication of tariffs should be heard by the court. The alliance submitted in the affidavit that because exemptions would not be ready by April 30, e-tolling could not be considered ready to commence.

But Unterhalter, the Treasury’s Jeremy Gauntlett SC and Department of Transport’s Vincent Maleka SC all argued against the amendment being admitted by the court. They won in the end. with Judge Prinsloo striking the amendment off the court roll, saying it could be heard at a later date.

The case then moved on to the urgent application.

Unterhalter handed in all the state’s notices since 2006 showing the process they used to declare the roads toll roads and their subsequent public consultation. He said that in the past year the government had made it clear during all the e-toll commencement postponements that it was interrogating the tariffs and not the road tolling.

Gauntlett argued that in their application the alliance described various hopes that e-tolling would be scrapped, showing they had knowledge earlier than February this year about tolling, and they should have brought the application earlier. “Even on Outa’s website they themselves say ‘after months of consultation with our legal team’,” Gauntlett said in his argument that the case not be considered urgent.

The alliance’s legal representative, Alistair Franklin, meanwhile pointed out that because e-tolling is due to start in under a week, the matter was urgent, and he asked the judge to consider the enormous public interest in the case. “Don’t close the door in the face of the public,” he said.

Franklin said e-tolling could not be considered formal until tariffs were announced, which happened only earlier this month. If e-tolling was allowed to start, the “horse would have bolted” and the system could be illegal.

Franklin’s two main arguments regarding the illegality of the system were that the collection costs were as high as the cost of building the roads, and the system was impractical. Collection cost as much as R20 billion, and both Sanral and the minister of transport refused to divulge the true cost of the collection fee.

“Why will they not give us or the court this information?” he asked. “It must simply be that the information will show the unreasonableness of the system.”

He also said the impracticality of the system needed to be considered because if only 7 percent of road users were not compliant, Sanral would have to issue 70 000 summonses a day.

A decision was to be taken on Wednesday on whether the application would be considered urgent. - The Star

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