Johannesburg - The Constitutional Court
reserved judgement on Wednesday on whether it should overturn an
interim interdict preventing e-tolling in Gauteng from going ahead.
"We reserve judgement and the court
is adjourned," Chief Justice Mogoeng Mogoeng said.
Opposition to Urban Tolling Alliance
(Outa) lawyer Alistair Franklin told the court the SA National Roads
Agency Ltd (Sanral) choice of e-tolling as a method of funding caused
it more damage than a court order that halted the system.
Franklin said the interim interdict was
not the cause of "irreparable harm" to the road agency.
It rather suffered "self-imposed"
harm by not looking at alternative funding models.
"There are other methods to
collect the money, such as fuel levies," he said.
"The disproportionate cost of
tolling is irrational when there is available to the agency (Sanral)
another choice for funding which does not involve any costs."
His arguments were met by a
considerable amount of queries from the judges.
The High Court in Pretoria granted Outa
an interdict against e-tolling on April 28. It instructed that a full
review needed to be carried out before electronic tolling of
Gauteng's highways could be put into effect.
Sanral and National Treasury are
appealing against the court order.
The agency argued that delays in the
project due to the court's order prevented it from paying off debts
incurred in building gantries.
Franklin said on Wednesday this
argument did not hold water as there were four postponements prior to
Outa's application for the interdict.
"It appears on the facts that
government was quite prepared to postpone e-tolling at its own
"But if there is an impediment to
e-tolling that is not of its own making, then it suggests that that
is calamitous and will result in irreparable harm."
Franklin said Sanral was not ready to
put the project into effect.
"Sanral was not ready (at the time
of the interdict) and is still not ready to commence e-tolling."
He said this was reflected by the
absence a new tariff notice.
Though Sanral said public transport
would be exempted from e-tolling, these exemptions had not been
Sanral had also not distinguished
between the driver, user and owner of a vehicle that could be tolled.
Sanral lawyer David Unterhalter SC
argued that the costs of collection for e-tolling should have been
"You cannot take a general policy
framework and allow it to (be) subordinated to a single economic
ratio," he said.
"It is impossible to fairly assess
the costs for collection against all the other costs of the project."
Unterhalter said the rate of
non-compliance was not a proper reason for a review of the project.
"There will be some measure of
deviance... (but) it is a criminal offence to use a road and not pay
for it," he said.
"This is not a proper ground for
attacking (the e-toll system)... Ask if this is a system that is
lawful - and it is," he said.
Unterhalter said there were measures to
manage deviance, and those who did not comply would face criminal
However, if people argued that they did
not use the road, they could have a defence.
He said it was not necessary to
prosecute every single person, but to merely make an example to
He admitted that there were mistakes
and faults, but the system was ready to begin for income to be
Unterhalter argued that the high court
had not shown restraint in its judgement, and that there was a
"threshold" that needed to be crossed before a court could
intervene on a policy matter.
Deputy Chief Justice Dikgang Moseneke
said courts needed to tread carefully on policy matters, but that
nothing was beyond review since it was a constitutional right.
National Treasury lawyer Jeremy
Gauntlett said High Court Judge Bill Prinsloo did not provide
adequate reasons for his decision to grant the interdict.
"With respect, what he does... is
tick the individual interdict boxes, and to say each time that it
(the reason) is there."
He said it was difficult for the
parties to determine how he had come to his conclusions.
Gauntlett said it was "wholly
unrealistic" to grant an interdict against the project when it
was ready to begin.
"I know it's all been built, what
this fight about is how it is paid (for)."
He likened this to having built a
stadium and reviewing it merely based on how its turnstiles worked.
Gauntlett said the interdict, by
acknowledging that government had decided to take-on Sanral's debts,
would unfairly impact the entire country's economy.
"Government ends up robbing Peter
to pay Paul. Where Paul are road users who have claimed this
wonderful world-class transport facility, and Peter are the people in
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