Judge Louis Vorster had misinterpreted a section of the Sanral Act on public consultation to reach his ruling that e-tolling could proceed, the high court in Pretoria heard on Friday.
Mike Maritz, for the Opposition to Urban Tolling Alliance (Outa), argued before Vorster that he had “erred fundamentally” in his interpretation of section 27 (4) of act.
He said Vorster had not engaged with the argument against a lack of “procedural fairness” in the way Sanral had informed the public about e-tolling.
“That definition of what is required under procedural fairness is not satisfied [in the judgment]at all,” Maritz said.
“It is the public at large who are adversely affected to the tune of R70bn, but under your lordship’s interpretation they have no entitlement, they have no say, they just have to pay.”
Outa was arguing in the supreme court of appeal for an application for leave to appeal Vorster’s judgment.
He ruled in December that e-tolling could proceed because the Gauteng Freeway Improvement Project had been lawfully instituted. He dismissed Outa’s application with costs.
Maritz argued that the lack of fairness constituted a contradiction to aspects of the constitution.
In his judgment, Vorster said only the physical aspects of the project were up for public participation, and not the costs.
Maritz said it would follow from the judgment that Sanral could have paved the road in gold and charged R50 000/person through e-tolling, without having to tell them about it.
He argued that Vorster had relied on a minority ruling of the constitutional court regarding an urgent interdict which halted the process, which was not correct. “The ruling dealt with only one ground of unreasonableness [of the e-tolling project],” Maritz said. “It didn’t deal with any other grounds for review.”
In September, the constitutional court overturned an interim order putting the e-tolling project on hold. It found that the high court had not considered the separation of powers between the high court and the executive in its ruling on 28 April.
On Friday, David Unterhalter, for Sanral, argued in favour of Vorster’s judgment. He said Outa had argued in the constitutional court in favour of an urgent interdict against e-tolling based on “procedural aspects”, but was now trying to reduce the significance of that court’s judgment. “Your lordship has properly interpreted the Sanral Act,” he said.
Unterhalter said the application for leave to appeal should not be granted, since the supreme court of appeal should not “go around” the constitutional court judgment. “There is no basis for this appeal,” he said. — Sapa