Gauteng e-tolling – no obligation to purchase e-tags and what happens next

This is according to Pieter Conradie, Director in the Dispute Resolution: Litigation, Arbitration and Mediation practice at Cliffe Dekker Hofmeyr business law firm. Cliffe Dekker Hofmeyr are the attorneys of record acting on behalf of the applicants.

“There is no obligation on the citizens to buy e-tags at this stage. I am of the view that the public will be entitled at this stage to claim back the R50.00 or whatever amount they have paid for the e-tags and return the e-tags to SANRAL. The public purchased the e-tags with the understanding that e-tolling will be implemented on 30 April 2012. This did not happen and may not happen for many months or may never happen. The public do not need to have e-tags by 31 May 2012,” he says.

Conradie says, “I am of the view that this is the beginning of a new phase where the people of South Africa will stand together to force Government to make rational decisions and decisions which are fair and to the benefit of the people of South Africa and the country in itself. It is time that the Government realises that it serves the people of South Africa and not the other way around.

“Government should have had proper consultations with its citizens and should have informed the citizens prior and during the consultations what the entire scheme would entail. If the Government had consulted properly, it might have realized that there are better and much cheaper schemes available to collect revenue to pay for the maintenance and upgrading of our roads.”

Conradie says the interim interdict may have repercussions for other Government decisions that did not comply with procedural requirements and which were made irrationally.

Conradie notes that Government will now have to consider whether it will apply for leave to appeal.

“I am of the view that another court will not arrive at a different decision as that of Judge Prinsloo and that the Government will have difficulty in persuading Judge Prinsloo to grant them leave to appeal.

“Furthermore, with such a public outcry and opposition to the e-tolling scheme, it would perhaps also be insensitive and unwise of Government to apply for leave to appeal. In view of the opposition to the e-tolling by the people of Gauteng and also the people of South Africa, the Government should carefully consider whether it wishes to take the court process further and whether it should not rather scrap the e-toll system and introduce something acceptable to the people of Gauteng,” says Conradie.

Conradie explains that the Opposition to Urban Tolling Alliance (OUTA) will now wait for the record of all the documents and information the various Ministers considered when it made the determination to proceed with e-tolling. The Applicants in the matter therefore do not have to do anything at this stage. The record will entail for example, correspondence, reports, memoranda, documents, evidence, transcripts of recorded proceedings and other information which were before the Respondents.

Conradie explains, “The review process entails that we now await for the record and when we are satisfied that we are in possession of a full record, the Applicants are entitled to file supplementary affidavits. These supplementary affidavits will then be served on the Respondents who will then be entitled to file a notice to oppose the review application. The Respondents will be entitled to file answering affidavits within 30 days after receipt of the Applicants supplementary affidavits and 10 working days after receipt of the Respondents answering affidavits, the Applicants may file replying affidavits. It is only after all the affidavits have been filed, that application will be made to the court for a court date for the review application to be heard. The court will interfere with the decision of the Respondents, where there is an entire absence of evidence on which the Respondents could have based its findings and furthermore, where the Respondents failed to exercise its discretion properly, which is of course what the Applicants alleged.”

Conradie says no legislation has to change to make e-tolling legal.

“With regard to the contract between SANRAL and the e-tolling consortium, a copy will be requested as part of the record as surely the Minister of Transport should have considered any agreement between SANRAL and foreign contractors, as such agreement must have an effect on the price for using the roads to be paid by the public. This has a direct impact on the tariffs to be paid by the public.”

He says that how long e-tolling will be put on hold, depends a lot about the conduct of the Government from now on and when the Alliance will receive a full record to their satisfaction as requested in the court papers. This process may take two or three months. However, with the pressure from COSATU on the Government to investigate other ways of financing the maintenance of the roads, e-tolling may be put on hold for a much longer time.

“I am of the view that the best outcome for e-tolling at this stage, is that it should never happen in a way that is so damaging to the pockets of the motorists of Gauteng,” Conradie adds.