WHAT DOES THE CONSTITUTIONAL COURT DECISION MEAN FOR OUTA’S CASE?
On 20 September 2012, the Constitutional Court ruled to set aside the temporary interdicting of e-Tolling, granted by Judge Prinsloo on 28 April 2012. This judgment by the Constitutional Court does not impinge on OUTA’s case which will subject the decision to toll the GFIP to a full judicial review.
By setting aside the interdict, the Constitutional Court has effectively sent a message to the courts to refrain from applying temporary interdicts against the implementation of policy decisions made by Government . It does not imply that citizens cannot subject these decisions to a judicial review by the courts, as in the OUTA case, should they believe that Government’s decisions are, for example, irrational, unreasonable, unjustified, unconstitutional or not in the best interests of its citizens.
WHY DOES OUTA BELIEVE IT SHOULD CONTINUE WITH THIS LEGAL CHALLENGE?
Simply put, the grounds for this case remain very sound and strong. We believe that the current e-toll process is a case of financial abuse and unreasonable action against both citizens and businesses in South Africa.
The merits of our case and the multitude of legal correspondence between OUTA and Government are detailed on OUTA’s web site but some of key features are :-
1. The administrative costs of e-tolling the GFIP is an unreasonable waste of billions of SA Tax payer’s money. While we accept the need to pay for the freeway improvements, we expect to do so through an efficient method to collect these “taxes”. Gauteng road users will pay not only the road construction (approx. R36bn over 20 years including interest) but additionally, they must suffer the burden of the toll collection system, estimated between R1,3bn and R1,7bn per annum. These toll administration and collection costs amount to the finance costs of almost another entire Gauteng Freeway (Phase 1a) construction and upgrade costs.
2. Poor planning and incorrect information used when deciding to e-Toll: At the time of making the decision to e-toll, the Minister of Transport was not sufficiently made aware of neither the risks inherent in the non-payment of e-tolls, the enforcement processes nor the costs of collection. Initial estimates of the e-Tolling revenue collection process presented to the Minister during the e-Toll decision making process was in the order of R200 million per annum, a gross underestimation when compared to that which the ETC contract reflects as R8,4bn over a 5 year tender period.
3. Lack of consultation and transparency: While SANRAL will have us believe that they consulted and engaged with the Gauteng public on this matter, the simple truth is they failed and fell far short of what would be expected in a matter of this magnitude. A general notice, absent of any level of detail, in several newspapers is grossly inadequate. Of around 3,5 million motorists in Gauteng, SANRAL received only 28 responses to their notices (one was a petition with 55 signatories), yet SANRAL remains satisfied that they have sufficiently engaged. We maintain this was an absolute failure of sound and effective public participation on their behalf.
4. Serious lack of viable alternative routes. While we know there are peripheral roads to the highways, , these are already congested and, in many cases, in desperate need of repair. Additional traffic volumes due to road users avoiding e-Tolls will lead to traffic chaos.
5. A serious lack of effective and reliable public transport option. Earlier communications and plans for e-Tolling, by authorities, indicated that paramount to the e-Toll process was the implementation of an efficient public transport system. A safe and reliable form of alternative public transport for most of the current freeway users remains many years away.
6. This is an “Owner Pays” and not “User Pays” system. Part of the problem and administrative burden of this system, is that the vehicle owner and not necessarily the user will be picking up the bill from these gantries. In addition, it is not a truly user pays system, as SANRAL will allow a number of users to be exempt and the fact that there is a cap on the amount, means that some users will not pay for all the road they use.
Road users are willing to pay:
There are less expensive and more efficient processes for road funding available. The national Fuel Levy is just one such efficient mechanism. Notwithstanding the increasing cost of fuel, we may have to apply an additional levy of 10 to 15 cents per litre to pay for both the GFIP upgrades and start to make funds available for road upgrades in our other main metros.
As tax payers we already contribute to the upgrading of roads all around the country.
We all appreciate that there is not enough money available to meet all of the socio-economic challenges facing the country but by working together in a transparent, constructive and genuine manner we can find the solutions.
We sincerely trust that our continued engagement with the Inter Ministerial Committee (IMC) will achieve an equitable and sustainable outcome.