File photo by Boxer Ngwenya

Pretoria - E-tolling in Gauteng is a step closer to becoming a reality.

The Opposition to Urban Tolling Alliance lost its court battle against the government in the Pretoria High Court on Thursday.

In an 18-page judgment, Judge Louis Vorster dismissed the alliance’s argument that the SA National Roads Agency Limited did not consult the public on the system and its costs because Sanral wanted to rush it through before the World Cup in 2010.

“Those allegations are of speculative nature only and (are) founded on an inference drawn by the applicants that Sanral dragged its feet to deal with public participation aspects in view of the World Cup soccer event that was on its way,” said Judge Vorster.

“The publications in the Government Gazette and newspapers circulating in the areas in question were clearly adequate to inform interested persons of the proposed toll declaration,” he said.

He said the argument that these notifications were inadequate and unfair were based on the wrong assumption that every motorist who would use the toll road had a right to be informed based on the proposed expenditure and tariffs of the system.

The judge said: “It is clear from the Constitutional Court judgment… that the capital costs of the proposed toll scheme as well as the operating costs and likely tariff to be imposed are matters which are not open for comment or public participation by potential interested or affected persons, as those matters fall… within the domain of the executive government as a matter of financial policy.”

The judgment comes two weeks after a court review into e-tolling during which arguments were heard as to whether the system should go ahead.

During the review, the alliance’s senior counsel Mike Maritz argued that the public participation process, done in 2007 when the decision to toll was made, was so inadequate that it was illegal.

Maritz said Sanral kept the public in the dark to avoid opposition to the project so that it could build the roads in time for the World Cup.

David Unterhalter SC, appearing for Sanral, was furious with Maritz’s claims that Sanral had deliberately lied to the public, and he asked for punitive costs if he continued with the argument. Unterhalter and Jeremy Gauntlett SC, for the National Treasury, argued that Sanral followed the law and the courts had no right to interfere with the government’s decisions.

Reading his judgment in court 4E on Thursday, Judge Vorster also ordered the alliance to pay the legal costs of Sanral, the Treasury, the Department of Transport, the Gauteng MEC of transport and both the minister and director-general of the department of water and environmental affairs.

These costs include the court case in the Pretoria High Court and the application for an interdict to stop the e-tolls before the Constitutional Court in September.

Before the judgment, the alliance said it was happy with its efforts. “I’m a bit nervous, but I think whatever happens we’ve done enough… society is now empowered enough to know what is wrong and to make tolling unsuccessful in the long run,” chairman Wayne Duvenage said before judgment was handed down.

DA member of the provincial legislature Jack Bloom estimated that the government had spent between R20 million and R30m on legal fees.

“That’s all taxpayer money being used to fight the public,” he said.

The government’s legal representatives were in a good mood before the judgment. “I never call cases,” said Sanral’s Unterhalter. “Ditto,” said the Treasury’s Gauntlett.

But once the judgment was delivered, there were bear hugs, handshakes and kisses on one side of the courtroom – and the gutted silence of disbelief on the other.

Sanral chief executive Nazir Alli was surrounded by government officials and lawyers who hugged and grinned at the news.

“An early Christmas,” said one government official.

A defiant Alli threw the judgment in the faces of Duvenage and Bloom, saying they had no respect for the Constitutional Court.

“I hope they will now encourage people to register for e-tags and stop what they have been doing.”

He refused to answer questions on when the system would go ahead.

A tearful Duvenage said today was “a sad day for democracy” and that the judgment essentially meant citizenry had little effect when the government made decisions, even if those decisions were not for the greater good of society.

He said the judgment essentially encouraged civil disobedience as people were so against the system.

He again urged people not to buy e-tags.

The Star