E-toll judgement reserved

2012-08-15 17:58

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 volition.

"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 published.

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 examined holistically.

"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 sanctions.

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 encourage compliance.

He admitted that there were mistakes and faults, but the system was ready to begin for income to be generated.

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 other provinces."

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  • danny.levin.351 - 2012-08-15 18:32

    The citizens are going to kick SANRAL "OUTA" here....

      aarchaic - 2012-08-16 08:05

      "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 other provinces." As if goverment is not robbing us on a dialy basis with money going to tenders and projects not completed but the Contractor is paid in full! ALSO!! Sanral = SA NATIONAL Roads Agency Ltd Keyword in that name is NATIONAL not Sapral SA PROVINCIAL Roads Agency Ltd So why not Add the bloody 10c or 20c a liter of petrol and IMPROVE ALL THE ROADS WITH IN THE COUNTRY! when last have they driven in Mpumalanga between Leandra, Delmas, Ogies, Bethal, Secunda Witbank??? those roads are in a STATE many people are lucky on a dialy basis to only loose a Tyre and a wheel and not their lives! "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." Its should also be a Criminal offence for SANRAL and be charged with Neglect and Attempted Murder for not maintaining roads. And if a person dies in a accident because of a Pothole or a uneven road surface where a person had a blow out and lost control SANRAL SHOULD BE CHARGED WITH MURDER!

  • prieurp34 - 2012-08-15 18:33

    The public was never informed or asked to attend a public debate surrounding the e-tolling system! To expect us to pay not only for e-tolling but also Tollgate fees are ridiculous! Government is already draining us on other taxes, fuel and food as a few examples, now this, we will not pay!

      J.Stephen.Whiteley - 2012-08-15 19:34

      Yes! The collections are unreasonable within the contemplation of section 213(1) of the Constitution, as they breach section 195(1)(b)(e)(g) (2)(b) and (3). There's no need for a Parastatal to maintain roads.

  • willem.wulfse - 2012-08-15 18:37

    The advocates have the ability to describe crap, because it can be spread like butter, as tasting like butter.

  • prieurp34 - 2012-08-15 19:00

    The public was never informed or asked to attend a public debate surrounding the e-tolling system! To expect us to pay not only for e-tolling but also Tollgate fees are ridiculous! Government is already draining us on other taxes, fuel and food as a few examples, now this, we will not pay!

  • malcolm.j.patterson.1 - 2012-08-15 19:03

    It stands to reason that a fuel levy would have been more cost effective, you have to ask yourself which is easier for the greedy to get their hands into. I've heard the figures bandied about about the collection costs, which obviously start with the building of the gantries, which are absolutely ludicrous. A grade 1 could have done the math for them and come up with the right answer.

      Hugh - 2012-08-16 00:11

      But the fuel and road levy is not ring fenced and is therefore spent on other things like presidential jets and building new towns so that in retirement the man will be king of all he views.

  • jaba.kov - 2012-08-15 19:14

    This is a win-win situation for South Africans and democracy. E-Toll is suicide for the ANC, as the uneducated (ANC voters) will realise that the ANC are thieves when they start paying for something they don't want... or if E-Toll is stopped the ANC would look like thieves & criminals to the public as a court of law ruled against them. this is great news... love to see how the ANC self destruct... We need new bumper stickers: E-Toll = ANC. In court anybody can be paid off... but this kind of advertising will be a word of mouth catastrophe for the ANC. ANC's E-Toll ANC's E-Toll ANC's E-Toll ANC's E-Toll ANC's E-Toll ANC's E-Toll

      mokgadi.deborah - 2012-08-16 06:36

      Wishful thinking. By the way who are you calling uneducated ANC voter? There are people who have masters degrees and more who choose to vote for ANC.

      denise.herbst.5 - 2012-08-16 07:51

      Mokgadi - The ABSOLUTE corruption and total inability to deliver services that gets worse and worse within the ANC means that anyone with that level of education who votes for the ANC in the next election is just a stupid racist! With any degree of reasoning you know that they are not capable of running this country except into the ground - why would you vote for them except if you would rather have cANCer then vote for a 'white' party? Anyone who votes for them deserves to spend the rest of their lives getting ripped off!

  • vernon.samuel.7 - 2012-08-15 19:54

    I have no serious understanding of law. But my simple understanding of it, together with my understanding of ethics, makes me cringe at every argument put forward by Sanral and the Treasury. 1) cannot assess costs of collection against other costs? What hogwash! Their iinitial project plan had to have catered for this. How else could they give a multi-billion tender to start on the gantries? 2) rate of non-compliance not a reason to review the project? Horse-dung! Apartheid fell because constant non-compliance my learned friend. Besides, no responsible government can bull-doze a law through, knowing that millions of taxpayers may flood the courts with small collections cases. The economy will grind to a halt. 3) Criminal offence to use a road and not pay for it!!! We are already being taxed for the long-existing roads. They have merely been upgraded. 4) No need to punish everyone for non-payment of tolls; punish one as an example!!! And if that person takes his case to the constitutional court because other offenders are not being targeted? Surely you cannot apply the law selectively? 5) Sanral admits mistakes and faults, but the system is ready for income generation, so let it happen!!! I cannot even begin to comment on this without resorting to profanities! 6) No tolls will adversely impact on the economy! Sure, so let's bankrupt several touusand families who cannot afford another R500.00 per month and see small trucking businesses go out of business and another several thousand people lose their jobs and the cost of living in general go up and see resulting soaring of inflation - and all of that won't impact on the economy???!!! 7) The treasury cannot rob Peter (other provinces) to pay Paul (Gauteng)!!! Is that not what is currently happening in Limpopo because it had been financially ruined by government incompetence? So, to use another fancy phrase like you seem to enjoy, what is good for the goose is good for the gander. Ok I am done venting. I am sure that the honourable constitutional court judges are not as simple-minded as me, but I hope that they throw out this application by Sanral and the Treasury for the stinking cover-up of a government rip-off that it is.

  • warwick.railton.7 - 2012-08-16 07:40

    A big crack in the gob for sanral. Nazi Alli, hope your rear is burning you corrupt sod. Never register; never give a cent to this monstrosity. Pravin, you were handed a hot potatoes by your anc buddies, now you are burnt – also not the brightest crayon in the box either?

  • john.rattey - 2012-08-16 08:36

    Has sanral ever come up with a reason why the collection fees should be so high? They seem to sidestep that issue and argue all sorts of other angles. It is clear they have been caught out and now need to duck & dive. But, deep down, by hook or by crook, I believe the system will eventually be forced upon us. I am just not sure the government realizes what that will precipitate.

  • thomas.a.dutoit.9 - 2012-08-16 08:42

    A few years ago there was an adjustment on the petrol price that was to aid 1) SASOL, 2) road accident funds and 3) road repairs. Like everything the government lays its hands on the funds disappear.

  • angeladebra - 2012-08-16 09:19

    48 million people in South Africa. 15 million people receive Government grants. That leaves 33 million people of which only 5.5 million people are registered tax payers. That leaves 28 million people not paying taxes. How many taxi drivers are registered tax payers when they operate on a cash basis but they are excluded from e-tolling. This is about screwing law abiding citizens yet again to make the ANC fat cats fatter. When the remaining 28 million citizens are accounted for and pay taxes as well then there wont be a need for e-tolling. Yet again government incompetence and stupidity

  • nico.dupreez1 - 2012-08-16 09:20

    If I'm not mistaken more the 60% of all vehicles are in Gauteng meaning that more fuel is sold in Gauteng the in any other province, this means that Gauteng has be subsidizing the road repair in the other provinces for the pas how many years. We in Gauteng is Peter and the rest of the country is Paul. We are rob to pay for the rest of the countries roads. No they want us to pay more to pay for repairs and upgrades of our own road that we always been using.

  • linda.nzimamazibuko - 2012-08-16 10:10

    Ons is GATVOL van hierdie government, maybe it is time we vote them out!!

  • dane.jenkinson - 2012-08-16 11:55

    What "wonderful world-class transport facility" are they referring to? The N1 is arching already. Clearly a BEE built highway.

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