SANRAL shot down again

2016-09-22 13:43

Yes Sanral has been  shot down again and  as usual the taxpayer  carries the litigation costs? So how much costs are we talking about?  Try R20million onwards!

The latest  SCA decision (SANRAL v City of Cape Town [2016] ZASCA    122 ) against SANRAL'S rapacious bid to introduce toll roads in and around Cape Town ought to alert us as to, if this wastage didnt take place how many.

* teachers  would be trained and employed

*  doctors woukd be employed in state  institutions and save or heal people

*  food subsidies  government could finance

*  houses could be built

*   students  woukd be financed

*  jobs creating enterprises it could benefit.

Briefly, the SCA  dismissed an appeal by  SANRAL! Period.  The  Western Cape High Court court earlier had  reviewed and set aside: (a) an  application by SANRAL to the Minister of Transport (the Minister) to   approve the declaration of a number of toll roads; and (b) the   subsequent decision by the Minister to approve that declaration. Both lacked legality.

The issue in chief  before the SCA was whether the decisions by the Minister and the SANRAL board relating to the declaration of a number of toll roads were lawful; and (ii) whether SANRAL should be interdicted from entering into a proposed concession contract relating to the contemplated toll roads.

The case concerned the much publicised N1-N2 Winelands Toll Highway Project, and the legality of the process followed in declaring certain national roads as toll roads. The SCA explained that it is within the prerogative of the legislative and executive arms of government to formulate and implement policy on how to embark on, and finance, public projects, including national highways. It would accordingly be in breach of the separation of powers for the court to rule on whether the project in question ought to be embarked upon, and whether tolling was an appropriate means of financing it. Nevertheless, the court emphasised that it could and must ensure that the organs of state tasked with making these important decisions had acted in accordance with the principle of legality and had complied with the statutory prescripts regulating their activities.

# IMPORTANTLY  with regard to the present process, the SCA found that both SANRAL and the Minister had "acted unlawfully in purporting to have the roads declared as toll roads" (sic) in terms of The South African National Roads Agency Limited and National Roads Act 7 of 1998 (the Act).

For a road to be lawfully declared a toll road, the Act required SANRAL to apply to the Minister to have the road declared as a toll road, and the Minister must approve that application.  On the evidence, however, it appeared that SANRAL’s board of directors had never held a meeting to consider the matter, and had never formally approved the tolling of the roads. This was held to be a fundamental and egregious flaw. The project was one of national importance involving costs that run into billions of Rands. The SCA considered that this required serious and informed deliberation, and found this to be sorely lacking. It held further that a board resolution adopted by a differently constituted board years after the fact could not lawfully ‘confirm’ a decision that had never been taken. It accordingly upheld the portion of the cross-appeal directed at having this resolution set aside.

Concerning the Minister’s decision to approve the declaration, the Minister had considered his role to be primarily an oversight role. The SCA held that this was incorrect. The Minister, in scrutinising the application for the declaration of a toll road, was exercising a control function as a member of the executive over an organ of State which was statutorily and politically accountable to him. He was required to bring an independent mind to bear. As the Minister had misconstrued his powers and function when coming to the relevant decision, this decision too was unlawful and liable to be set aside.

Accordingly, the SCA held that the decisions by both SANRAL and the Transport Minister were invalid. #HOWEVER  and on the flipside, the SCA refused to grant the City’s request that SANRAL be interdicted from entering into a proposed concession contract regarding the toll roads in the coming future. So watch this space. The SCA held that as there was no certainty regarding whether the roads would be tolled at all, and if they were, the details of such tolling, it would be premature to grant such an interdict. Calling all activist citizens.The government got the rudest shock ( and Jesus has yet to come ashore) on August 3  that ordinary South Africans are united, as they are against the current toll road saga in Gauteng. Funds that could  be usee to upgrade medical facilties  are put on hold. With the fees must fall armageddon governnent has to listen to the vox populi and put an end to all this wastage and act in the  interest of every South African.

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