Strong legal recommendation for OUTA to appeal
The meeting concluded that the judgment is clearly wrong in several material respects and should not go unchallenged. Foremost among these are the following:
1. The judge’s interpretation of Section 27 of the SANRAL Act effectively renders public participation meaningless and is out of line with other Constitutional Court decisions on the right to fair administrative action. The judge held that:
(a) The public did not have to be properly informed of the extent of SANRAL’s plans to upgrade and e-toll GFIP, which comes at great cost to the road user.
(b) It was not necessary for SANRAL to effectively bring their plans to e-toll to the attention of the road using public by proper publication in the various media etc.
2. The judge held that the standard of fairness in section 4 of the Promotion of Administrative Justice Act (PAJA) is a subjective one, as opposed to an objective test as required by the Constitution. The public participation procedure initially adopted by SANRAL was accepted as fair by the judge for the purposes of section 4 of PAJA merely because SANRAL considered it to be fair.
3. The judge did not consider many of the key grounds of review raised by OUTA at all (for instance, the failure of the Minister of Transport to consider the full costs of e-toll collection, the fact that materially incorrect information was placed before the Minister of Transport on the costs of e-toll collection in any event, and the disproportionate costs of e-tolling as a method of funding) on account of a misreading of the Constitutional Court judgment overturning the interim interdict in September 2012.
4. The judge misdirected himself in failing to consider binding authority on costs awards in constitutional and public interest litigation and ordering the applicants to pay costs. The costs order was wholly inappropriate given that the application was brought in the public interest and in defense of the constitutional right to just administrative action and the constitutional right protecting against arbitrary deprivation of property. The costs order was wholly inappropriate for the further reason that the papers had explicitly informed the judge that the application was funded predominantly by the public with the use of funds gathered by means of public fund raising. The costs order is a very harmful precedent that will have a negative and dissuasive impact on public interest litigation and the challenging – where necessary – of government action by civil society, which is a critical and much needed feature of a constitutional democracy.
The judgment should be appealed in order to vindicate and protect the rule of law. In the case of e-tolling, the law - namely section 27 of the SANRAL Act – required SANRAL to conduct a meaningful public participation process at the outset, which decidedly was not done. The GFIP e-toll scheme is accordingly unlawful, and hundreds of thousands of road users are presently at risk of being forced to pay e-toll in terms of a scheme that was not lawfully introduced. OUTA will seek new mandates from its supporters to pursue the legal appeal. The first step, the application for leave to appeal, must be lodged by 9 January 2013.