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Lawyer: Outa case based on a sham

Nov 28 2012 14:07 Sapa

E-tolls. Picture: Sapa

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Pretoria - A case by the Opposition to Urban Tolling Alliance (Outa) to have e-tolling scrapped is based on a sham, the High Court in Pretoria heard on Wednesday.

"It was all a sham... They used the sham to get out of a hole," argued Jeremy Gauntlett SC, who is appearing for the National Treasury.

"Fraud cuts through all things.... The sham is vital to their new case. They argue that they should be excused for their delay."

Gauntlett echoed arguments made on Tuesday by David Unterhalter SC, for the SA National Roads Agency Limited (Sanral), that all relevant civil society organisations representing Gauteng motorists had known about e-tolling and the user-pay principle, but had done nothing until the tariffs were introduced.

Unterhalter argued that these organisations stood by for years while construction was taking place and could see the upgrades.

On Wednesday, Gauntlett argued that civil society waited until after construction before saying it did not like the user-pay principle.

"Civil society is a watchdog, but it must get out of the kennel and bark," he said.

"Civil society must take action before the eve of the attack."

Gauntlett said its argument was "futile", and that it should have taken action sooner.

"(The application) is their attempt to delay the inevitable," he said.

He said Outa had gone to court without a properly argued case.

"Outa has been hopping around to make a case of dishonesty against Sanral and run a new case on that basis," he submitted.

Its case was a matter of public finance and should not be argued in court as it would "harm" the country, Gauntlett argued.

He said the case should be dismissed, and that the Treasury stood by Sanral and the transport department.

The court is hearing final arguments in the case.

Gauntlett said the Treasury had nothing to do with the case, but was a respondent because of the effects on the economy if e-tolling was barred.

He said Outa had failed to bring an ordinary commuter who would explain how they would be affected.

"Where is the person who would say Sanral lied to them?" Gauntlett asked.

"This application should be dropped like a stone. The application has taken up so much paper and legal time."

Vincent Maleka SC, for the transport department, told the court roads in Gauteng had been upgraded and that the public had supported the upgrade.

"That (upgrade) can't be reversed."

On Tuesday morning, Unterhalter contended that Outa had changed its submissions in September after the Constitutional Court overturned an interim order putting the Gauteng e-tolling project on hold.

The Constitutional Court found the High Court in Pretoria had not considered the separation of powers between the high court and the executive.

On April 28, the high court granted the interdict to Outa, ruling that a full review needed to be carried out before e-tolling could be put into effect.

The interdict prevented Sanral from levying or collecting e-tolls pending the outcome of the review.




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