OUTA’s E-Toll Court Challenge Update
There is much said by OUTA’s detractors about the outcomes of the court challenges brought between April 2012 and October 2013) by OUTA to review the decision to toll Gauteng’s freeway upgrade (constuction period 2008 to 2011), in order to finance the R20bn finance bonds to pay for this upgrade.
This summary below provides calrity on the rulings to date and what these mean for the eToll decision and current collateral challenges being managed by OUTA on behalf of its supporters since 2016 to date.
It is important to note that the 2012 Application that was brought by OUTA (then known as the Opposition to Urban Tolling Alliance) was an application for judicial review regarding the e-toll decision.
A judicial review application is an application that can be brought against any discussion of an administrative nature, the judicial review asks the courts to set aside a decision made by an executive authority (i.e. in the e-toll circumstances, government). One of the parameters of such an application is that the application must be brought within 180 days, after the decision was made.
Due to the fact that the Judicial Review Application was brought five (5) years after the decision was made, OUTA approached the court to obtain an extension of this 180 days period, to enable them to competently challenge the administrative action (decision) that was made.
In terms of the Application, as referred to above, the Constitutional Court and the Supreme Court of Appeal gave judgment herein. The important parts of the judgements are highlighted hereunder:
The Constitutional Court: Judgement was provided in September 2012, brought against OUTA’s successful interdict of the launch of e-Tolls in April 2012, wherein the Constitutional Court held that:
“It must be added that this court is being asked to decide whether the interim interdict has been properly granted. If it were to do so, it would not usurp the role of the review court. That role will be limited to deciding the merits of the review grounds, something this court is not finally deciding.
In a dispute as the present one, this does not mean that an organ of state is immunised from judicial review only on account of separation of powers. The exercise of all public power is subject to constitutional control. For instance, if the review court in due course were to find that SANRAL acted outside the law then it is entitled to grant effective interdictory relief. That would be so because the decisions of SANRAL would in effect be contrary to the law and thus void.”
The Supreme Court of Appeal, in its judgment given on 9th October 2013, held that:
“The stark reality remains that because of the delay in bringing the review application, five years had elapsed since the impugned decisions were taken, and that, during those five years, things have happened that cannot be undone. The clock cannot be turned back to when the toll roads were declared, and I think it would be contrary to the interests of justice to attempt to do so. It follows that the application for an extension under section 9(1) should, in my view, be refused.
The result, as I see it, is that we are prevented by the provisions of section 7(1) of PAJA from embarking upon the merits of the review application.
In this light, it should be apparent that the 180-day time bar in section 7(1) is confined to direct challenges by way of proceedings for judicial review. It does not limit collateral challenges at all. It is, therefore, both unnecessary and inappropriate to extend the 180-day time limit in order to provide for potential collateral challenges.
We cannot avoid that limitation to our authority simply because the same questions might arise were there to be future collateral challenges, the success of which is by no means certain, that are not before us.”
Summary of these events:
The courts held that the extension of the 180 period in terms of a judicial review application not be granted. It also held that although the judicial review was not granted, it could not preclude any further challenge regarding the constitutionality of the e-toll scheme and thus left a door open for any future challenge.
It is thus clear that even the Constitutional Court confirmed that the courts have not as of yet given judgment regarding the constitutionality of the e-toll scheme and that in the event that future challenge be made, it will only then be able to give proper judgment in terms of the constitutionality of the scheme’s decision or its operations.