Hiccup for e-toll opponents

2012-04-24 22:36

Thomas Hartleb and Genevieve Quintal

Pretoria - Efforts to stop e-tolling experienced a hiccup on Tuesday when the North Gauteng High Court in Pretoria dismissed an attempt to submit amended court documents relating to toll fee exemptions.

The Opposition to Urban Tolling Alliance (Outa), one of four applicants, argued in an amended affidavit filed on Saturday that tolling could not go ahead on 30 April because exemptions for public transport were not in place.

Alistair Franklin, for the applicants, wanted the tariffs reviewed and set aside.

However, Judge Bill Prinsloo struck the amended affidavit from the roll and ordered the applicants to pay the "wasted" costs.

David Unterhalter, for the SA National Roads Agency Limited (Sanral), had asked for the new affidavit to be struck from the roll.

"Once the applicants move the case... to the tariff determination, we are dealing with a different case. Everyone must be given an opportunity to respond," he argued.

Jeremy Gauntlett, for the National Treasury, argued that the new amendments to the case broadened its scope to such an extent that his client would be prejudiced.

The Treasury was admitted as the seventh respondent in the matter on Tuesday.

Gauntlett said the respondents, including the transport minister, were prejudiced by the approach of Outa and other applicants, in filing their amended affidavit at the 11th hour, leaving little time for the respondents to prepare.

"They are trying to raise these additional points now on a tacit premise... that it's urgent," Gauntlett said.

Gauntlett said the dispute over the Gauteng tolls tariffs was a "small tail wagging a large dog".

Too late

Arguing the urgency of the application itself, Unterhalter said the opponents of Gauteng's tolling system were far too late in bringing their court action. The toll roads were declared in 2008.

"I know of no other case where four years after the event the applicants come along and try to invoke the court's power."

He said the applicants had created their own urgency. They would still have their day in court, but it would be at another time.

Unterhalter was asking for the dismissal of the application.

He said litigation had to get underway within a reasonable time, which would have been 180 days after the declaration of the toll roads.

The applicants knew tolling had been decided on as the preferred means to raise funding for Gauteng's freeway improvement project, after other options had been considered.

Only the issue of tariffs was up for discussion.

On 4 February 2011, the first notice announcing the tariffs was published. This was followed by a public outcry and the government's establishment of a steering committee to review the fees.

Vincent Maleka, lawyer for the transport minister and Gauteng transport MEC, said Outa was not entitled to another postponement of the e-tolling system.

The scheme had already been postponed four times since April 2011.

"There must be an extraordinarily good reason to postpone the scheme again," said Maleka.

Funding issue

However, Franklin argued that Outa could bring legal action only after the tariffs had been announced in February 2011.

He said Outa and the other applicants trying to stop the tolling became aware that the system would start on 30 April, only when it was announced in the Budget on 22 February.

The applicants supported the need to upgrade Gauteng's roads, but were against how this would be funded.

"The applicants attack the funding method that was adopted, that is all."

Franklin rejected arguments that the applicants could still have their day in court, even if their attempt to halt the tolls failed and the scheme went ahead on Monday.

"There is a very real prejudice motorists will suffer should this scheme turn out to be unlawful. It [this application] is urgent because if this relief is not given before 30 April, the horse will have bolted."

He said road users would pay more in toll tariffs than the actual cost of the freeway upgrades.

"Sanral has only now, in 2012, put in place all the legislative building blocks that authorise it to collect toll," said Franklin.

Sanral had also not provided the terms and conditions of its contract.

Prinsloo said he would hear further arguments and give judgment on the urgency of the matter on Wednesday.

- SAPA