THE Constitutional Court on Thursday set aside the interim interdict which had prevented the South African National Roads Agency (Sanral) from levying tolls on certain Gauteng freeways.
The decision means Sanral could be ready to levy the tolls even before the high court review of decisions to toll the freeway network is heard in November.
While the government welcomed the decision, the Congress of South African Trade Unions (Cosatu) vowed to maintain its opposition to the tolls.
The court said the interim interdict must be set aside because it failed to consider the separation of powers of different arms of government.
The court said absent any proof of unlawfulness, the power to implement policy resided in the exclusive domain of the executive.
The e-tolling system was due to come into effect at the beginning of May but the North Gauteng High Court granted the Opposition to Urban Tolling Alliance an urgent interdict to halt the implementation of the system on April 28.
The ruling was a heavy to blow Sanral, and left it with a large funding gap for the Gauteng freeway project.
In its appeal before the court in August, Sanral had indicated it would be ready to implement tolling four weeks after the lifting of the interdict.
Thursday’s judgment said the separation of powers was a vital tenet of the country’s constitutional democracy.
“Courts must refrain from entering the exclusive terrain of the executive and legislative branches of government, unless the intrusion is mandated by the constitution,” Deputy Chief Justice Dikgang Moseneke said when reading the judgment.
He said North Gauteng High Court Judge Bill Prinsloo's deafening silence on the important consideration of separation of powers when he granted the interim interdict entitled the Constitutional Court to intervene.
“The high court should have held that the prejudice that would confront motorists in Gauteng if the interim interdict were not granted did not exceed the prejudice that the national executive, national treasury and Sanral would have to endure were the temporary restraining order granted,” Justice Moseneke said.
The government said it welcomed the ruling. The Department of Transport said the ruling “reaffirms government’s conviction that the North (Gauteng) High Court had erred in its judgment, which interferes with policy making, a responsibility of the executive. Government respects the right of any member of the public to approach the courts to review its decisions and operations within the country’s legal framework.”
The department said the government remained convinced of the appropriateness of the Gauteng Freeway Improvement Project, and the user-pays principle, as part of the country’s investment in road infrastructure and its drive to grow the economy.
Congress of South African Trade Unions general secretary Zwelinzima Vavi has vowed that the unions will do everything possible to stop the implementation of the new highway tolling system in Gauteng.
Addressing journalists on the sidelines of the Cosatu congress under way in Midrand on Thursday, Mr Vavi said the unions would even take to the streets and build a strong public campaign against the decision to “privatise” highways.
He said the outcome of the Constitutional Court case was immaterial, because their objection to the tolls was not a legal argument questioning the government’s authority over financial decisions, but a political one.
The court outcome should not encourage the government to “willy-nilly implement the tolls” because there were political discussions in the ruling alliance, looking for alternative funding to the R20bn roads infrastructure, he said.
“Cosatu is absolutely determined to oppose (the e-tolls) at street level.”
Mr Vavi said the government would not be allowed to “ram down the throats” of the people what was a “second tax”.
“We want to warn the government, don’t even think about it because you are going to bring an unnecessary conflict between yourselves and the people that voted for you. There will be no e-tolls.”
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