E-toll saga far from over

Sanral has not won the battle yet.

Dikgang Mosenekje
Dikgang Mosenekje
Anyone who thinks that the South African National Roads Agency (SANRAL) has won the battle to be allowed to implement the e-toll system in Gauteng from next month, better think again. It may be legally entitled to do so, but is likely to face another public outcry, if not  union action, that could bring traffic in the province to a standstill.
Last week, the Constitutional Court set aside an interim order that put on hold a plan to toll highways in Gauteng. Deputy Chief Justice Dikgang Moseneke set aside the order on the basis  that the high court had not considered the separation of powers between the court and the executive. 
The interdict prevented theSanral from levying or collecting e-tolls pending the outcome of a judicial review, and this prevented it from paying off debts incurred in building gantries.
Handing down judgment in the case brought by Treasury and the South African National Roads Agency (Sanral) on Thursday,  Moseneke said the North Gauteng High Court failed to consider separation of powers in granting an interdict against the start of Gauteng e-tolling before November's High Court review.
He said courts " must refrain from entering the exclusive terrain of the executive and the legislative branches of government, unless the intrusion is mandated by the constitution itself".
He said the High Court should have considered that the financial harm that would befall Gauteng motorists did not outweigh the harm to the state. Sanral incurred a R21-billion bill on the Gauteng Freeway Improvement Project (GFIP) and chose tolls as a way to cover the debt.
"The immediate and ongoing result of the interdict is that Treasury, the executive government and the national legislature will have to allocate R270-million per month to Sanral in order to meet its ongoing capital and interest repayments in respect of the GFIP," said Moseneke. "Thus the order has wide-ranging consequences for national finances and the management of our country's sovereign debt."
Cosatu holds the view that toll fees on a heavily-used commuter route would financially cripple the public. It has warned government not to "even think about implementing e-tolls" before these public consultations were over. If it did, Cosatu would oppose it “with every power we have," spokesman Patrick Craven was quoted as saying.
A less tougher line has been adopted by the South African Chamber of Commerce and Industry (SACCI) whose CEO Neren Rau acknowledged the court decision saying  South Africa was a constitutional state” where the court has to balance the rights of service providers and end road-users. 
“This does not mean that negotiations and the interaction between SANRAL and the South African business community will end suddenly; the policy design on large infrastructure is a dynamic and ongoing process. SACCI trusts that the events thus far will inspire government to seek an equitable solution to the GFIP funding challenge.”
He said  SACCI remained concerned about the impact on the cost to business from the e-toll and the proportion of the revenue that would go toward a seemingly ineffectual collection method. 
“The quality of a roadway that is relatively expensive is also of concern; the highways included in the GFIP continue to experience a high incidence of traffic deadlock. Before a road user is charged to use the GFIP, the facilities must be in place to ensure that users receive a full value service. The GFIP must therefore be economically feasible so that the benefits of using the tolled road exceed the costs.”
He said  SACCI was finalising a position paper on infrastructure financing “which would serve to inform current and future policy on the revenue and financing design of large projects like the GFIP. “The SACCI Annual Convention on the 4th and 5th of October 2012 will discuss the future of South Africa’s infrastructure expansion and the best way to coordinate business and government resources.” 
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