THE North Gauteng High Court in Pretoria on Thursday dismissed an application to have the Gauteng e-tolling project scrapped.
“In my view the application cannot succeed,” acting judge Louis Vorster ruled.
Last month, the court had heard three days of arguments from the Opposition to Urban Tolling Alliance (Outa), the Treasury, the South African National Roads Agency (Sanral) and the minister of transport.
Outa, together with the South African Vehicle Renting and Leasing Association, the Quadpara Association of South Africa and the South African National Consumer Union, wanted the court to review and set aside Sanral’s decision to declare certain sections of the Gauteng freeway network as toll roads, and the approval of the toll declarations by the transport minister.
The organisations had to present strong arguments before the court on why they launched their review application four years after the decision to toll the freeway network had been taken.
Counsel for the Treasury and Sanral, meanwhile, picked on the fact that the case lodged by the Outa and three other organisations had differed markedly between March — when it was first launched — and November, when the review was being heard.
They were concerned that the focus of the case had shifted from a challenge against tolling as a method of funding the Gauteng freeways, to a challenge against procedural fairness by Sanral in consulting the public before the declaration of some freeways as toll roads. They also took exception to a submission made by Outa’s counsel, Mike Maritz SC, that Sanral had kept the public in the dark when the notices of intent to toll were published four years ago.
On Thursday, Judge Vorster ruled that the crux of Outa’s application — that there had not been an efficient public participation process — was flawed, adding that aspects of its application were “erroneous” and “speculative”.
The application was dismissed and the applicants were ordered to pay the costs of the respondents.
Outa not giving up the fight
Outa chairman Wayne Duvenage, who was present at court on Thursday, said the judgment marked a sad day in the democracy of South Africa, adding that Outa would try to appeal against the judgment.
“Today's judgment represents a sad day for South Africa's democracy as it demonstrates (the) government is able to railroad public engagement policies and thereby make decisions that are not necessarily in the best interests of society. This judgment now endorses (the) government’s decision to toll Gauteng's freeways despite the fact that e-toll decision has been overwhelmingly rejected by the Gauteng motorists and society at large," Mr Duvenage said.
He encouraged Gauteng’s road users to continue resisting the implementation of e-tolling and not buy e-tags. “We urge motorists not to purchase e-tags, as they are not legally obliged to, and to make the e-tolling system unworkable. We have seen around the world that without the support of society, projects like these fail.”
The Congress of South African Trade Unions (Cosatu) issued a statement saying that they would continue to oppose the policy of e-tolling even though they were disappointed in the decision of the high court.
Cosatu spokesperson Patrick Craven told Business Day the ruling doesn’t change the mass action Cosatu has planned against e-tolling going into 2013.
“Our opposition to e-tolling has been political more than legal. Even if it may be legal it is still a bad policy. We will continue with mass action and we will continue our campaign of urging people not to purchase e-tags,” Mr Craven said.
Sanral CEO Nazir Alli welcomed the decision by the court and said Outa show lack of respect for the law in opposing e-tolling even after the Constitutional Court ruled against them.
“There have been a lot of untruths, a lot of lies, a lot of half truths being perpetrated against Sanral to cast Sanral in a bad light. We are only here to implement government policy.
“I would like all of us to turn around to respect the decision of the court. It is extremely unfortunate the opposition showed total disregard and disrespect for the decision of the Constitutional Court. That is the highest court in the land. If we begin to disrespect the decision of the Constitutional Court, that is going to lead to the erosion of the rule of law. These are the very same people who have spoken about respect for the rule of law and what they have showed us is that they have total disrespect for the highest court in our land.
“Let us now go ahead with tolling and I hope Mr Duvenage together with Jack Bloom will lead the charge to getting people to register and stop what they have been advocating," Mr Alli said.
In September, the Constitutional Court overturned an interim order putting e-tolling on hold. The court found that the North Gauteng High Court, when it granted an interdict to Outa in April, had not considered the separation of powers between the high court and the executive.
“Sanral has long held that proper steps were taken by the agency in the implementation of e-tolling and is gratified by the decision of the high court. The ruling finally clears all questions surrounding the legality of e-tolling,” the agency said in a statement on Thursday.
It urged vehicle owners to register for tolling and obtain e-tags.
“Sanral remains strongly convinced that the user-pays principle is the best funding mechanism to finance infrastructure development where it is required,” it said.
With Sapa, Khulekani Magubane and Ernest Mabuza