News National Outa's e-tolls legal challenge dead in the water

Outa hasfiled papers in the high court for leave to appeal a ruling that would pave the way for e-tolling. (Delwyn Verasamy, M&G) 08 JAN 2013 16:56 - NICKOLAUS BAUER Experts have downplayed Outa's prospects of success in its continued legal challenge of the implementation of Gauteng's e-tolling system. OUR COVERAGE High court ruling sets e-tolling in motion Lamola on e-tolling: Where are the white people? E-tolling remains firmly on citizen's shoulders MORE COVERAGE E-tolling Bill withdrawn - until next year Cosatu renews call to scrap e-tolling Poor attendance at e-tolling meetings "The original Constitutional Court judgment blasted a hole into Outa's [Opposition to Urban Tolling Alliance] legal argument by saying that policy decisions are not to be meddled with by the courts," Pierre de Vos, a constitutional law expert, told the Mail & Guardian on Tuesday. Outa – a civil society organisation solely formed to contest the introduction of e-tolling on Gauteng's highways – this week filed papers in the North Gauteng High Court for leave to appeal a ruling that would pave the way for the introduction of the contentious system. In December, the court ruled in favour of the South African National Roads Agency Limited (Sanral), against an application to have the decision to implement electronic tolling on Gauteng roads reviewed and set aside. It followed a Constitutional Court ruling in September that put the plan on hold, pending the outcome of a judicial review. With these judgments in mind, any chance of Outa's success in challenging the matter further are placed in jeopardy. "I would be very surprised if the SCA [Supreme Court of Appeal] decides to take a different view on this matter," de Vos added. 'We have a strong case' Outa's legal challenge argues that government did not undertake adequate public consultation on the tolling system, which requires commuters to fit an e-tag that will monitor each time they pass a gantry on the highway and be charged electronically. Outa chairperson Wayne Duvenage told the M&G he was optimistic, but believes this is the alliance's final legal challenge. "We would be doing society a disservice if we were not to continue fighting and say government can do what it wants without fear of reprisal." "But if this appeal does fail, I don't see us going any further," Duvenage said. "We have a strong case," he said. "The members of Outa would rather go for this and put it behind them if it was a lost cause." Funding models The alliance contends the state is legally obligated to publicly debate the funding models of infrastructural improvements on the country's roads. But currently there is no legislation compelling government to use one method of finance over another. Although Section 27(4) of the Sanral and National Roads Act clearly requires public consultation on "the physical aspects of the proposed toll road declaration and particularly the situation of the proposed toll plazas," there is no provision to consult on the cost or funding of the project. As such, de Vos describes Outa's challenge as a "political fight" without "adequate legal footing". "Government decides this type of thing; it's a political matter," he added. "If we don't like it, we have a democratic right to vote against the party in government at the next election." De Vos's view is echoed by advocate Norman Arendse. "The original judgment that resulted in a court interdict preventing e-tolls from being rolled out overstepped the boundaries in the separation of powers and that is certainly going to weigh on their legal challenge," he said. The alliance's legal bid However, Arendse said that in spite of overwhelming odds against a successful court challenge by Outa, the alliance's legal bid is still important. "It was always going to be a stretch, but this legal conversation must be had as it provides judicial clarity on the separation of powers between the executive, the courts and Parliament," he said. Advocate Johan Gaum provided further support to this notion. "Let's see what happens, if all this matter does is facilitate legal certainty then so be it. The more certainty we have from a legal perspective over the separation of powers, the better this country will stand politically," he said. Mail & Guardian - E-tolling judgment illustrates failure of media and citizens Dec 13th, 2012 by Pierre De Vos. 126 comments The decision by the North Gauteng High Court to dismiss the application by the Opposition to Urban Tolling Alliance (Outa) to have the decision to implement e-tolling on Gauteng freeways stopped, provides a textbook example of how the media and middle class citizens often fail our democracy. It also serves as a warning that citizens should not turn to the courts in the hope that judges will help them to solve their political problems. It might well be that e-tolling is not the most cost-effective, fair and efficient way to pay for the major upgrading of urban roads. It might also be that middle class citizens, who will now have to pay tolls every time they speed from Johannesburg to Pretoria in their sports utility vehicles and luxury sedans, will pay more than they would have paid if a different method was implemented to pay for the upgrade. It might even come to light – who knows – that there was some corruption or nepotism involved in the awarding of the e-tolling contract. But these are not the questions acting Judge Vorster was called upon to answer – and rightly so. Outa could not provide the court with any evidence of corruption. The other questions raised above essentially relate to policy issues, which must be determined through the political process, not the courts. It is important to remember how this case landed in court in the first place. Back in July 2007 Cabinet approved the implementation of the e-tolling for Gauteng and in October of that year the then Minister of Transport officially announced the launch of the project. As a result of the acceptance by National Cabinet of the toll road scheme, the toll road declarations – eventually attacked in court by Outa – took place. As the court pointed out rather wryly, the members of Outa were, and probably still are, in favour of the upgrading of the freeway road system in Gauteng. However, it was only when they learnt about the proposed toll tariffs published in the media that “they became bewildered and concerned”. This was almost 5 years after cabinet had approved the upgrade of the roads through the implementation of an e-tolling system. In my view the important question to ask is why members of the public only became outraged when newspapers splashed alarming news of the tariffs (since reduced) on their front pages. Somehow, no one – including, as far as I can tell, no one in the media – had thought of asking back in 2007 whether e-tolling was a good idea and how high the tariffs might have to be in order to recover the huge expense incurred by making Gauteng’s roads pretty for Sepp Blatter and his fellow raiders from Fifa. Is this a failure of the media alone? After all, at the time the media failed to ask the most difficult questions and failed to seek answers in order to keep the public informed. The cabinet announcement of a toll financed road upgrade was never going to make for a sexy story in the absence of hard investigative work into how much the whole thing was going to cost, who was going to pay and who was going to benefit. But maybe the (mostly) middle class citizens, who ignored the original announcement as well as the physical evidence of gantries being built all across the newly upgraded freeways of Gauteng, cannot escape responsibility. Surely, if citizens want the government to listen to them, then they have to remain vigilant about government decisions affecting them and must be prepared to organise against such plans from an early stage? As the Right2Know campaign has shown, public campaigns of this nature can have a huge impact, but it requires hard work and vigilance. In short it requires active citizens, ready to get involved and to get their hands dirty – even before it is apparent that they would be directly affected by a policy. Sadly, when the original decision was taken to impose e-tolls on Gauteng freeways, middle class citizens were too busy doing other things to organise opposition to the idea in order to place political pressure on the Gauteng and National Government to stop what some must surely now think was an ill-conceived and expensive project. Too busy enjoying the bread and circus provided by the media (thanks to Polokwane, Julius Malema and Caster Semenya, amongst others), citizens did nothing until they realised how much it will cost them personally – and only then did they immediately ran to the courts. As if the courts – and not active citizens – are the ones who are supposed to stop unpopular policy decisions and to punish a government politically for making unwise or unpopular decisions. When Outa finally approached the court to try and stop the implementation of e-tolling, it relied largely on the alleged failure of the government to take into account the costs of the upgrade as well the cost of operating the e-tolling system, arguing that given the cost, the decision to implement it was unreasonable and hence invalid. The Constitutional Court drove a stake through the heart of this argument when it overturned the interim interdict against the introduction of e-tolling. In that judgment the Constitutional Court noted that the main thrust of Outa’s application was the alleged unreasonableness of the decision to proclaim the toll roads and then remarked: But unreasonable compared to what? The premise of the unreasonableness argument is that funding by way of tolling is unreasonable because there are better funding alternatives available, particularly fuel levies. But that premise is fatally flawed… [SANRAL] has to make its decision within the framework of Government policy. That policy excludes funding alternatives other than tolling. It is unchallenged on review… [but the]… making of the policy falls within the proper preserve of the executive and was, on the papers before the Court, perfectly lawful… The Courts in this country do not determine what kind of funding should be used for infrastructural funding of roads and who should bear the brunt of that cost. The remedy in that regard lies in the political process. That is why everybody agreed before the High Court that the costs of tolling, the merits of using tolls as a means to finance the upgrade and the proposed e-toll tariffs which would be necessary to finance the scheme, were irrelevant considerations for purposes of the High Court review. As the Constitutional Court had pointed out, those considerations fell within the preserve of executive government and therefore outside the jurisdiction of the courts. Outa therefore had to argue, first, that SANRAL was required by law to include basic information relating to the capital costs involved, the costs of collecting toll and the suggested tariff of toll which is envisaged in its submissions to the Minister, which it did not do. Without this information, Outa argued, there could be no proper public consultation as required by the relevant legislation. The court rejected this argument, pointing out that the section 27(4) of the SANRAL Act clearly requires public consultation on “the physical aspects of the proposed toll road declaration and particularly the situation of the proposed toll plazas” – not on the cost of the project or the tariffs to be charged. Although the Court did not mention it, this provision in the Act makes sense, as the tariffs to be charged for tolls is an operational decision, while decisions on the route of the toll road as well as the placing of gantries had the potential to influence the property prices of certain homeowners and would require broader consultation with those whose interests would be directly threatened by the decision. Outa also argued, second, that adequate notice of the tolling system was not given to the public, making real public participation in the decision impossible. But the court pointed out that the proposed toll road declarations were published in the Government Gazette and in newspapers circulating in Gauteng. However, Outa suggested this was insufficient and that particular notices should have been put up adjacent to the roads in question. The judge also rejected this argument, pointing out that SANRAL was required to act fairly and that this requirement was met when it published the requisite information in the media. One assumes active citizens are aware of such notices. The publications in the Government Gazette and newspapers circulating in the areas in question were clearly adequate to inform interested persons of the proposed toll declaration. The argument that such notification was inadequate and therefore unfair, rests on the erroneous assumption that each and every user of the proposed toll roads had a right to be informed, given the importance of knowledge of the proposed expenditure of the scheme and the proposed tariffs that could be levied in due course. I suspect that some citizens are going to complain bitterly about the outcome of this judgment. Some might even channel their inner Gwede Mantashe and question the integrity of the presiding judge. Some might argue that the judge hid behind the separation of powers doctrine to abdicate his judicial responsibilities or to make a career-advancing ruling that would please the ANC government. These mutterings will be irresponsible and dangerous. One criticises the substance of a judgment and the nature of the statements made by a judge; one does not impugn a judge’s integrity merely because one does not like the outcome of one of his or her judgments. Questioning the integrity of the judge would also be ill-informed and based on the lazy assumption that judges should interfere in policy decisions even when citizens failed to do their bit to block such decisions because they were too busy making money or planning their next oversees holiday. It is the media and ordinary citizens who failed our democracy in this case – not our courts. Constitutionally Speaking - COMMENTS BY SONNY - - If these facts by Prof Pierre De Vos are true, then the ConCourt ruling on the matter is flawed! Without public participation the 'due process' was not followed by the executive and Parliament. We can see the hands of the Devil at work here. HAS THE CONCOURT AND THE JUDICIARY BEEN COMPROMISED? TIME SHALL BEAR WITNESS TO THIS EVIL PRACTISE. WE, THE CITIZENS OF SOUTH AFRICA SHOULD ACT NOW, BEFORE IT'S TOO LATE. Has Zuma taken the minds of the 'People who are expected to uphold and protect the Constitution?" People left the meetings because the convenor's would not address the matters at hand! Has Prof Pierre De Vos gone soft on the Constitution?