Sanral acted unlawfully in Winelands toll matter - SCA

2016-09-22 17:02
Sanral staff outside the offices in Midrand. (<a href=''>Jacaranda News</a> via Twitter)

Sanral staff outside the offices in Midrand. (Jacaranda News via Twitter)

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Bloemfontein - Sanral and the transport minister acted unlawfully in purporting to have the Winelands routes declared toll roads, the Supreme Court of Appeal said on Thursday.

It dismissed an appeal by the South African National Roads Agency Limited (Sanral) over the right to toll the N1 and N2 Winelands routes.

However, the SCA said it would be in breach of the separation of powers for the court to rule on whether the project ought to go ahead, and whether tolling was an appropriate means of financing it.

The SCA found that both Sanral and the minister had acted unlawfully in purporting to have the roads declared toll roads in terms of Sanral Act 7 of 1998.  

The act requires that Sanral must apply to the minister to have the road declared a toll road, and the minister must approve that application.

Lacking in deliberation

READ: Sanral vs Outa: More than 15000 say SA should continue 'to fight e-tolls'

On the evidence, however, it appeared that Sanral’s board of directors never met to consider the matter, and never formally approved the tolling of the roads, which was a "shocking" flaw, the SCA said.

"The project was one of national importance, involving costs that run into billions of rands."

The SCA said the project required serious and informed deliberation, and that this was sorely lacking.

The minister’s decision to approve the declaration was incorrect, as he considered his role an oversight one. He was, instead, required to "bring an independent mind to bear" when deciding whether to approve the proposal.

Premature to grant an interdict

The SCA refused to grant the City of Cape Town’s request that Sanral be interdicted from entering into a proposed concession contract regarding the toll roads.

It said it would be premature to grant an interdict as there was no certainty regarding whether the roads would be tolled at all.

On September 30 2015, the Western Cape High Court reviewed and set aside approvals that would enable Sanral to go ahead with tolling the highways in the Winelands district.

City of Cape Town councillor Brett Heron said in a statement at the time that Sanral was appealing against that judgment, and that the City would defend its position.

The City's stance was that, according to the Sanral Act, only the Sanral board could declare a toll road and that it failed to do this.

Sanral previously said in a statement that there had been speculation and misinformation about the funding model to be used on the project.

Its Western Cape regional manager, Kobus van der Walt, said the initial cost of works would be R10bn, R2bn short of Sanral's total allocation per annum.

Van der Walt said the Western Cape was the only province that had permission from National Treasury to implement a fuel levy to finance roads, but had not implemented this.

Read more on:    sanral  |  cape town  |  etolls

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