Johannesburg - The e-tolling of Gauteng's highways must be set aside because insufficient public consultation has taken place, the High Court in Pretoria heard on Monday.
Opposition to Urban Tolling Alliance (Outa) lawyer Mike Maritz said the implementation of the tolls was unlawful.
The SA National Roads Agency Limited (Sanral) believed it had sufficiently consulted the public when it had not.
"The facts of this case cry out for the setting aside of this unlawful action," Maritz said.
He said the initial notice about the Gauteng Freeway Improvement Project was "sterile" and "misleading".
"There was virtually nothing contained in the sterile notice. It was positively misleading and it conveyed to the public that it was only existing roads that were going to be tolled."
This was why there had been such a limited response to the notice.
"As far as the first batch of notices is concerned, there were only 30 respondents out of millions of interested road-using members of the general public," said Maritz. "That tells its own story."
He said that because the notice was printed in several newspapers, it could not reach a wider spectrum of the public.
This included those who were illiterate, who had impaired vision, or who were not around to read the newspapers on those days.
It would have made more sense for Sanral to have had notices on television and radio as well.
He said that according to section 27 of the Sanral Act, public consultation and input on the project was "critical".
However, Sanral argued that the notice was enough, which meant it did not have to tell the public about the costs of the project, or how it would be implemented.
When construction on the project was underway, the Fifa soccer World Cup planning had begun, and average members of the public did not know how the developments would be funded, Maritz argued.
"In the public mind this was all part of the activity surrounding the world cup. The typical road user... did not know that it would be funded entirely by tolling."
He said it was possible that Sanral's alleged non-compliance with section 27 was a "deliberate strategy to keep the public in the dark".
If the principle of users-pay, or the e-tolls tariffs had been released by Sanral in previous notices, public outcry about the project would have happened earlier.
Maritz argued that if the cost of collecting the tolls was more than R3bn, it would exceed the cost of constructing the system.
He said Sanral wanted a total of R71bn from road users. This meant e-tolling was not a "capable" system.
The court also heard a claim of perceived bias on the part of Judge Louis Vorster. Treasury lawyer Jeremy Gauntlett asked Vorster to "consider his position" in the case after he agreed with Maritz on an issue.
"The point is objectively, what was stated was: 'You can rest assured that I was with you even before you started talking'," Gauntlett said, quoting the judge.
"We leave it to the lord's conscience now [to decide on his position]."
Vorster said he wanted to clarify his position "for all to hear".
He said he noticed that Outa had submitted two heads of argument and that both dealt with the interpretation of section 27 of the Sanral Act.
"I said to him, 'I'm with you on that one.' I meant that in the first set [of heads of arguments] that was the point that was made and in the second set that point is still there," Vorster said, adding that he had no bias in the case.
"I have not made up my mind. It is a vexed question and a question that is debated before me. I am open to persuasion and I have no preconceived decisions in that regard."
Gauntlett said the Treasury reserved its position.
The case continues on Tuesday.