Government has defended the “practicality” and “financial efficacy” of the electronic tolling of Gauteng roads during an appeal against an interim interdict granted against the South African National Roads Agency (Sanral).
A bench of eight judges today heard arguments on the controversial e-tolling system which was interdicted from implementation three months ago.
At the centre of the appeal is the treasury’s and the department of transport’s contention that North Gauteng High Court Judge Bill Prinsloo did not apply his mind when he granted the interdict to the Opposition to Urban Tolling Alliance (OUTA), which is challenging the decision to toll Gauteng roads.
Another bone of contention has been government’s assertion that the courts should not be used to review decisions made by the executive, with both advocates, David Unterhalter SC, representing transport, and Jeremy Gauntlett SC, representing Sanral, urging the court to be mindful of the separation of powers.
Gauntlett has questioned OUTA’s failure to raise objections against the tolling of Gauteng roads when the decision was taken in 2008.
He argued that there were many social benefits to e-tolling, including changing driver behaviour and forcing motorists to use alternative roads.
“The user-pay system is beneficial in that it conditions driver behaviour on whether to use that road or other options. Those who use the facility must pay for it and that is treasury’s decision,” said Gauntlett.
He dismissed OUTA’s case as “artificial” and asked the court to review Prinsloo’s interim order.
But Deputy Chief Justice Dikgang Moseneke questioned the financial efficacy of the e-tolling system which he said would be too costly to run.
Gauntlett responded by saying that Moseneke had relied on selective information where OUTA only looked at the capital costs and not the maintenance and operational costs of the system.
Gauntlett said OUTA’s “alternative” of using the fuel levy to fund road construction was considered by the treasury in 2006 and rejected.
He said new research showed that 91% of Gauteng motorists would pay less than R200 per month for tolls, but OUTA advocate Alistair Franklin asked the court not to consider any new information provided by Sanral as an interim order was already in place.
Franklin defended Prinsloo’s decision to grant the interdict and argued that the interdict was not responsible for any harm that the agency is suffering.
“Sanral is not suffering irreparable harm because of the delays. Even if it were, the harm is not caused by the order. There’s no issue about separation of powers which requires urgent tension of this court,” said Franklin.
Lawyers from both sides had to answer difficult questions from judges, including how Sanral intended to compel “deviant” motorists to pay for using the roads.
Since Sanral estimated that about 7% of motorists would deliberately not pay tolls as required, Moseneke asked Unterhalter what would prevent the system from being reviewed “on the grounds of rationality”.
“This is a case where those who will use the road will ordinarily comply with the law, there may be instances in which people borrow cars without paying that can lead to certain complications because Sanral will go against the owner of that car,” said Unterhalter.
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