Johannesburg - The Constitutional Court on Thursday ruled in favour of Government and the SA National Roads Agency Limited (SANRAL) in a court case that had led to the delay of the implementation of e-tolling on Gauteng's freeways.
The High Court in Pretoria had earlier granted The Opposition to Urban Tolling Alliance (Outa) an interdict against e-tolling which was scheduled to begin on some Gauteng highways on 30 April. It instructed that a full review needed to be carried out before electronic tolling of Gauteng's highways could start. The interdict prevented the SA National Roads Agency Limited (SANRAL) from collecting e-toll fees, pending the outcome of a judicial review.
SANRAL and National Treasury appealed against that court order. The agency argued that delays in the project due to the court's order prevented it from repaying debt incurred in building gantries.
On Thursday, the Concourt judges, in their unanimous decision, upheld the appeal - effectively setting aside the order of the High Court. This means that SANRAL can go ahead with the implementation of the e-tolls but it would be desirable for the appeal to be heard first.
In delivering the judgement, Deputy Chief Justice Dikgang Moseneke, said the court held that the interim order had an immediate and irreparable effect and was thus appealable.
"The judgement concluded that the interim order must be set aside because the High Court failed to consider or to give effect to the constitutional imperative of the separation of powers," said Moseneke.
In his argument to the court, Finance Minister Pravin Gordhan argued that Judge Bill Prinsloo of the Pretoria High Court had ignored the principle of the separation of powers. He said the decision to halt e-tolling would negatively affect the economy.
Under the project, motorists would pay over R0.35/km to travel on some of Gauteng's major roads.
On Thursday, Moseneke said courts must refrain from entering the "exclusive terrain" of the executive and legislative branches of government unless the instruction was mandated by the constitutional court.
The Concourt judges also went on to criticise the "deafening silence of the High Court on the important consideration of the separation of powers".
"The High Court should have held that the prejudice that would confront the motorists in Gauteng if the interim interdict were not granted did not exceed the prejudice that the National Executive, National Treasury and SANRAL would have to endure were the temporary restraining order granted."
Government welcomed the judgement, saying it reaffirmed its conviction that the North Pretoria High Court had erred in its judgement which interferes with policy making, a responsibility of the executive.
"Government respects the right of any member of the public to approach the courts to review its decisions and operations within the country's legal framework," read a statement.
"Government remains convinced about the appropriateness of the Gauteng Freeway Improvement Project, with the user-pay principle, as part of our country's investment in road infrastructure and our collective drive to grow the economy," it said.
OUTA is expected to respond to the decision at a press conference in Pretoria later today.
The development of a country's road infrastructure played a critical role in building its economy and sustaining its growth by facilitating the movement of goods and services across the country.
In 2007, Cabinet approved the extensive upgrade of roads in Gauteng as part of the Gauteng Freeway Improvement Programme (GFIP). The upgrade entailed an extensive work by SANRAL with the agency incurring costs amounting to R21 billion. With the approval of the Minister of Transport in 2008, SANRAL took a decision to declare certain highways in Gauteng as toll roads.
As part of the on-going stakeholder engagement process of the Inter Ministerial Committee (IMC) on the GFIP Project, led by Deputy President Kgalema Motlanthe, meetings had been held recently with unions, business and other concerned parties, including OUTA.
