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2012
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[2012] ZAGPPHC 63
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Opposition to Urban Tolling Alliance and Others v South African National Roads Agency Ltd and Others (17141/12) [2012] ZAGPPHC 63 (28 April 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT PRETORIA)
CASE
NUMBER:17141/12
DATE:2012-04-28
In
the matter between:
OPPOSITION
TO URBAN TOLLING
ALLIANCE
...................................................
1st Applicant
SOUTH AFRICAN VEHICLE RENTING AND
LEASING
ASSOCIATION
.....................................................................................
...
2ND Applicant
QUADPARA
ASSOCIATION OF SOUTH
AFRICA
...............................................
3RD Applicant
SOUTH
AFRICAN NATIONAL CONSUMER
UNION
..............................................
4th
Applicant
and
THE
SOUTH AFRICAN NATIONAL ROADS
AGENCY
LTD
......................
…................................................................................
1
ST Respondent
THE MINISTER, DEPARTMENT OF TRANSPORT
REPUBLIC
OF SOUTH
AFRICA
...........................................................................
2nd
Respondent
THE MEC, DEPARTMENT OF ROADS
AND
TRANSPORT,
GAUTENG
.........................................................................
3rd
Respondent
THE MINISTER, DEPARTMENT OF WATER
AND
ENVIRONMENTAL
AFFAIRS
....................................................................
4th Respondent
DIRECTOR-GENERAL,
DEPARTMENT OF
WATER
AND ENVIRONMENTAL
AFFAIRS
......................................................
5th Respondent
NATIONAL
CONSUMER
COMMISSION
...........................................................
6th
Respondent
NATIONAL
TREASURY
......................................................................................
7th
Respondent
JUDGMENT
PRINSLOO,
J: The applicants applied before me on an urgent basis this week for
interim interdictory relief aimed at restraining
the first respondent
from levying and collecting toll on certain sections of the Gauteng
Freeways by making use of the electronic
or "e-toli”
method.
The
interim interdict applied for is intended to restrain the first
respondent from so levying and collecting toll, pending the
outcome
of a substantive review application to be heard in due course before
a court of review. The interim relief is sought in
terms of part A of
the notice of motion and the substantive relief will be sought in due
course in terms of prayers set out in
part B of the notice of motion.
The
urgent proceedings before me concerned only the interim interdictory
relief sought in terms of part A. For illustrative purposes
it is
convenient to quote the wording of prayers 2 and 3 of part A of the
notice of motion:
"2.
That pending the final determination of the application for the
relief sought in part B hereof, the first respondent be
interdicted
and restrained from levying and collecting toll on
the
following roads:
2.1
national road N1 section 20 from Armadale to Midrand;
2.2
national road N1 section 21 from Midrand to the Proefplaas
Interchange;
2.3
national road N3 section 12 from Old Barn Interchange to the
Buccleuch Interchange;
2.4
national road N4 section 1 from Koedoespoort to Hans Strijdom Drive;
2.5
national road N12 section 18 from Diepkloof Interchange to Elands
Interchange;
2.6
national road N12 section 19 from Gillooly's Interchange to the
Gauteng/Mpumalanga Provincial Border; and
2.7
national road R21 (also known as the P157/1 and P157/2) sections 1
and 2 from Hans Strijdom Drive to Rietfontein Interchange
N12,
Province of Gauteng.
That
pending the final resolution of the complaint filed by the fourth
applicant with the 6th respondent in terms of
section 71
of the
Consumer Protection Act 68 of 2008
in respect of the first
respondent's 'e-Toll Terms and Conditions' dated 28 February 2012, or
the elapse of the time period referred
to in
section 114(1)
of the
Act, the first respondent be interdicted and restrained from levying
and collecting toll on the roads referred to in paragraph
2.1 to
2.7
above on the terms and conditions set out in the first respondents
'e-Toll Terms and Conditions'" The relief sought in
prayer 3 was
abandoned for purposes of this application.
In
terms of part B of the notice of motion the court of review will in
due course be moved to review and set aside the decision
of the first
respondent to declare the aforementioned sections of the freeways as
continuous toll roads and also to review the
establishment of
electronic toll points on those aforementioned sections of the
freeways. The court of review will also be moved
to review and set
aside the decisions of the second respondent ("The Transport
Minister") to grant approval to the first
respondent (The South
African National Roads Agency Limited or "SANRAL") to make
the aforesaid declarations in terms
of the provisions of the South
African National Roads Agency Limited and National Roads Act 7 of
1998 ("the Act:). There will
also be applications before the
review court in due course for decisions by the fourth and fifth
respondents, (the Minister, Department
of Water and Environmental
Affairs and his or her Director General) to grant certain
environmental authorisations required for
the upgrading of certain
interchanges and the like along the aforementioned sections of the
freeways.
Before
the review court the applicants will also apply for final
interdictory relief restraining SANRAL from levying and collecting
tolls specified in the aforesaid declarations. It is not necessary,
for present purposes, to deal in greater particularity with
the
relief to be sought in due course before the court of review.
The
6th respondent before me is the National Consumer Commission which
did not take part in the proceedings or oppose the application
on a
formal basis.
At
the commencement of the proceedings the National Treasury applied to
intervene as a 7th respondent in this urgent application.
The
application was duly granted. The 7th respondent ("The
Treasury") actively took part in the hearing and opposed the
application for interim interdictory relief.
Also
during the course of the proceedings, the Road Freight Association
and Afriforum made formal applications to be admitted as
amicus
curiae ("friends of, the court"). They did so in terms of
the provisions of uniform rule 16A on the basis that
they had
contributions to make in respect of constitutional arguments not
raised by any of the other parties to the dispute. Their
applications
to be so permitted were opposed by some of the respondents. I will in
due course briefly deal with the outcome of
the two applications.
After
the application which came before me was launched, no fewer than
three notices were published in the Government Gazette in
an attempt,
so it was argued on behalf of the applicants, to create a legal
infrastructure for the imposition of e-tolling on the
Gauteng Freeway
Improvement Project Network ("GFIP network") which is the
relevant freeway network in respect of this
application:
1.
on 13 April 2012 a notice was published stipulating the tariffs to
be paid ("the tariffs notice")1;
2.
On 18 April 2012 a notice entitled "Conditions of Toll" was
published
("the conditions notice"); and 3. on 18 April 2012 the
Transport Minister published draft regulations to provide
for
exemptions from e-Tolling on the
GFIP
network ("the draft regulations")." This was last
week, no more than three court days before this hearing started.
Since none of these documents existed when the application was
launched, the applicants could not have been expected to refer to
them in their papers and applied to amend their notice of motion and
to file a supplementary founding affidavit in which reference
is made
to these new notices. In the process of the amendment the applicants
also introduced a further (independent) ground for
interim relief,
namely that e-Tolling cannot commence on 30 April 2012, because there
is no legal infrastructure in place to exempt
the operators of public
transport from liability to pay tolls. I will revert to this topic
hereunder.
At
this point it is convenient to interpose by mentioning that in the
end nineteen eminent counsel appeared before me, ten of whom
are
senior counsel. I am indebted to all of the for their well crafted,
constructive and useful contributions. The hearing in the
urgent
court lasted for approximately three days and the record ran into
some 2 500 pages. Written heads of argument ran into a
few hundred
pages. The hearing ended two days ago, on Thursday afternoon. I am
now forced to hand down this judgment under extremely
urgent and
pressing circumstances, over a long weekend, because the tolling of
the roads forming the subject of the urgent application
is scheduled
to commence on Monday 30 April 2012, today being Saturday 28 April,
and the hearing before me commenced on Tuesday
24 April 2012.
At
the commencement of the proceedings SANRAL, the Transport Minister
and the Treasury contested the question of urgency, arguing
that any
urgency which may be present was created by the applicants themselves
as the decision to toll the roads on the GFIP network
was already
published some years ago, in 2008, and it was not open to the
applicants, under these circumstances, to launch this
application on
such an extremely urgent basis. It was argued that the applicants
were guilty of abusing the rules of court so that
the application
fell to be struck from the roll.
I
add that the fourth and fifth respondents (The Minister of the
Department of Water and Environmental Affairs and his
Director-General)
did not actively take part in the proceedings
before me and did not oppose the relief sought in part A of the
notice of motion.
The
applicants argued, broadly speaking, that they took part in the
process which enfolded after the intention to toll these freeways
was
made public. They made representations and attended meetings. It is
common cause that the Transport Minister on more than one
occasion,
four to be exact, suspended the whole tolling process, because of
unprecedented public outcries leading to protests against
the
impending tolling of the freeways. The last such suspension came from
the Minister as recently as January 2012.
I
interpose to record that on Thursday afternoon, two days ago, there
was an announcement of yet another, or fifth, postponement
of the
proposed tolling. This event, which took place on the day when the
hearing was concluded, was not part of the issues ventilated
before
me and barring one later reference to this occurrence I say no more.
It
was argued on behalf of the applicants that they only realised that
the tolling would become a reality when the Minister of Finance
announced in his budget speech on 22 February 2012 that the tolling
would be activated on 30 April 2012. When that announcement
was made
the applicants acted with the necessary expediency to prepare this
substantive and lengthy application, which they managed
to launch on
23 March 2012. They gave the respondents more than a month's notice
before the scheduled hearing on 24 April.
I
have already expressed the view that sufficient notice was given
under the circumstances. For the sake of brevity and given the
somewhat unusual and pressing conditions under which I am handing
down this judgment, I do not propose dwelling any further on
the
details of the arguments as to urgency or the lack thereof. I ruled
that the application was urgent and that it had to be heard
on that
basis. I was also inspired by the fact that this dispute has enjoyed
nationwide prominence and interest. I felt that it
was important for
some degree of clarity to be achieved.
I
return to deal with the application by the applicants to amend the
notice of motion and file a supplementary founding affidavit.
As I
have indicated the application was opposed on the basis that it was
only served on the respondents on Saturday 21 April, leaving
the
latter with too little time to react thereto. It was argued that the
amendment introduced additional grounds, thereby widening
the scope
of the application and also involved complex legal and factual issues
so that the granting of the amendment at this stage
would lead to the
prejudice of the respondents. After hearing argument I struck the
application for amendment and to introduce
a supplementary founding
affidavit from the roll with costs.
The
Road Freight Association, as I mentioned, had given notice of its
intention to apply for leave to join the proceedings as amicus
curiae. When the amendment was refused, the Road Freight Association
withdrew its application because the contribution it intended
to make
as amicus had a direct bearing on the subject the applicants sought
to introduce by way of the proposed amendments.
When
Afriforum, represented by Ms Engelbrecht, nevertheless later
proceeded with its application to be admitted as amicus curiae,
the
application was opposed on the basis that the toll tariffs, only
published less than two weeks before this hearing, on 13 April
2012,
which was to form the target of Afriforum's attack in support of this
application, was not part of the evidence before me
(with the
proposed amendment having been refused) or part of the issues between
the parties to the application.
According
to authorities I was referred to, it is inappropriate for an amicus
to introduce new contentions base on fresh evidence.
In the result I
refused Afriforum's application without granting an adverse cost
order. I am indebted to both amici for their efforts
to be of
assistance.
I
turn to a brief description of details of the various applicants.
This, in my view, is important and relevant for purposes of
considering the requirements which have to be established by the
applicants in order to obtain interim relief.
The
first applicant, the Opposition to Urban Tolling Alliance, is a
voluntary association with perpetual succession authorised by
its
constitution to inter alia launch or oppose legal proceedings in its
own name. The first applicant was established after the
presentation
of the budget speech in the National Assembly on 22 February 2012
which definitively signalled that the National Executive
had resolved
that the implementation of e-Tolling would proceed notwithstanding
resistance from civil society and political opposition
in the form
of, for example, Cosatu.
The
first applicant organisation came into existence on 12 March 2012. It
supports the need for the upgrades and road additions
that have been
effected and have been planned in terms of the GFIP as well as all
future urban and other route construction and
improvements as and
when the need arises.
The
first applicant (to which I will also refer at times as "OUTA"
which is the recognised abbreviation for the full name)
opposes
e-Tolling as a means to fund such construction and road improvements
as well as, in this instance, the alleged unlawful
manner in which
SANRAL and the Transport Minister have sought to implement the
proposed toll network. OUTA was established with
the purpose of
providing a platform for interested individuals, companies and
organisations to meet and coordinate their efforts
in opposing
e-Tolling. It was also established for the purpose of acting in the
public interest and in order to represent those
members of society
who are economically or socially disenfranchised and who were
otherwise not able to oppose the tolling of Gauteng's
freeways in
their own name.
The
organisations that are members of OUTA include:
1.
The second applicant, The South African Vehicle Renting and Leasing
Association or "SAVRALA", which represents its
22 member
companies that conduct business in the vehicle rental and leasing
industry and which collectively own 160 000 motor vehicles
and manage
a further 390 000 motor vehicles, 220 000 of which are on the road in
Gauteng. These rental companies include well-known
national and
international concerns such as AVIS and Europe Car.
2.
The South Africa Tourist Service Association ("SATSA") an
organisation representing 740 companies operating in the
inbound
tourism industry.
3.
The Retail Motor Industries of South Africa ("RMI"),
representing 7 500 members in over 14 sectors in the retail motor
and
related industries, including service stations, franchise car
dealers, panel beaters, spare outlets and tyre fitment centres,
many
of which will be impacted not only by the cost of paying toll, but
also by the increased cost of motor parts and related products,
60%
of which come from Gauteng. RMI is also concerned about the adverse
effect on the employees of its members, numbering approximately
300
000 who will suffer increased cost of transport and food.
4.
The Automobile Association of South Africa ("AA"), an
organisation conducting business on the roads of South Africa
and in
Gauteng with a membership of 2,5 million drivers nationally and 1,125
million drivers in Gauteng, has also formally associated
itself with
OUTA and supports the present application. The head of Public Affairs
of the AA, Gary Ronald, informed the deponent
to the founding
affidavit that the level of opposition to the proposed tolling
amongst the AA's members is overwhelming.
5.
OUTA also represents the interests of 94 businesses that have
registered as supporters of OUTA, since the launch of its website
approximately one month ago. The names of these businesses appear on
the website.
6.
OUTA further represents the 1831 individuals who have registered as
supporters of OUTA since the launch of its website. Their
names
appear on the website. It is anticipated that after the launch of
this application, the numbers aforementioned will increase
dramatically.
I
turn to a brief account of the personal circumstances of four
individuals who are members of OUTA and will be prejudiced should
the
relief sought in the application not be granted, and on whose behalf
OUTA is bringing this application. Their verifying affidavits
form
part of the record.
1.
Hilda Maphoroma is a wife and mother of two children who is resident
in Leondale Gardens and who works as a cashier at Norwood
Spar. Her
affidavit sets out how she and her husband, a policeman commuting
from Leondale Gardens to his workplace, have no option
but to drive
the toll routes to work. They illustrate how toll fees will swallow
9% of their combined income and drive their expenditure
to R1 090,00
in excess of their combined income.
2.
Denis Tabakin is a pensioner who is forced to continue working as a
travelling salesman in order to support himself, his wife
who has
Alzheimers and their son. Tabakin's job for which he drives 400 to
500 kilometres per week compels him to make use inter
alia of the
proposed toll road network. He is already forced to live off saved
capital in order to pay for his wife's care and
medical expenses of
approximately R18 000,00 per month. The extra R6 600,00 per annum
that he will have to pay for toll fees will
severely prejudice him
and will erode his capital further.
3.
Wayne Benjamin Osrin is a sole proprietor who runs a small plumbing
business that uses two vans and a motor car. Like many in
his
industry, Osrin and his crew have to travel to diverse suburbs
(listed in his affidavit) for work and in so doing often are
required
to make use of the proposed toll road network. Osrin explains the
financial difficulty that he presently experiences (as
do many
plumbers, says Osrin) and how paying toll will negatively impact his
business and make the retrenchment of one of his crew
unavoidable.
4.
Tsidi Leatse is a receptionist living in Boksburg who travels on the
N3 and N12 freeways to her place of work in lllovo each
day. Her
salary, after tax, comes to R7 000,00 and her monthly expenses to R6
000,00. Accordingly, should she have to pay approximately
R500,00 in
toll fees every month (approximately 7% of her after tax income) she
will have only R500,00 to save or use for unexpected
expenses.
Inasmuch
as the locus standi or legal standing of OUTA is disputed on the
papers, although not in argument before me, I find that
it does
indeed have locus standi, inter alia in view of the provisions of
section 38 of the Constitution of South Africa Act 108
of 1996 ("The
Constitution"). I need not dwell any further on this subject.
As
far as the second applicant, SAVRALA, is concerned, it has been
mentioned that it is a voluntary association that represents
22
member companies which conduct business in the vehicle rental and
leasing industries. The members of SAVRALA will suffer material
financial and administrative prejudice on account of the
implementation of open road tolling or e-Tolling, a system that
attaches
liability and directs enforcement against the owners of
motor vehicles as opposed to the individual driving the motor vehicle
on
the toll road, if the driver or user who should be held liable in
terms of the scheme does not pay the toll or cannot be traced.
I will
return to this topic later.
This
means that individuals leasing vehicles from SAVRALA members will
drive on the toll roads without SAVRALA or its members having
any
control on those movements, but the latter will be held liable for
the toll fees. It will be costly and cumbersome and logistically
challenging for these rental companies to introduce systems which may
allow them to recover the toll fees from their clients. I
also find,
inasmuch as it may be necessary, that SAVRALA has the necessary locus
standi.
The
third applicant, Quadpara Association of South Africa ("QASA")
is an organisation that protects and promotes the rights
and
interests of people with disabilities and people with mobility
impairment. Details concerning QASA and its members are supplied
by
its CEO, Aristides Seirlis, whose confirmatory affidavit forms part
of the record. QASA strives for the development and provision
of
projects, products and services, together with lobbying and advocacy,
to assist and develop the capacity of quadruplegics and
paraplegics
to integrate and function within mainstream society. There are
approximately 6 000 active members of QASA nationwide,
2 000 of whom
are based in Gauteng. 78% of the members of QASA are black and less
than 1 % are gainfully employed. The sole source
of income for 99% of
QASA's members (and the same would apply to quadruplegics and
paraplegics who are not members of QASA) is
the disability pension of
R1 200,00 per month provided by the state. The only viable mode of
transport for QASA's members is private
road transport. The vast
majority of QASA's members do not own a car of their own and cannot
afford to. They rely on friends, relatives
and community members to
transport them and typically will contribute to the cost of the
transport provided by paying towards fuel
costs. Public transport is
of little or no use to QASA's members. According to Seirlis, who
actively inspects public transport
offerings in Gauteng on behalf of
QASA members:
1.
The Bus Rapid Transport System is not accessible for persons
with
mobility impairment.
2.
The Metro Rail Service is not accessible to QASA members, is unsafe
and has no supplementary service assisting QASA's members
to move
from station to destination.
3.
The Gautrain is far too expensive and its reach and/or routes are of
no assistance to the vast majority of QASA1 members.
4.
Minibus taxis are not equipped to, and do not cater for persons with
mobility impairment.
The
members of QASA will be severely prejudiced by the tolling of the
proposed toll road network in that they will have to pay for
tolls
out of the minimal amount they receive as a disability pension.
Inasmuch as it may be necessary, I find that QASA also has
the
necessary locus standi on the strength of the provisions of section
38 of the Constitution.
The
fourth applicant, the South African National Consumer Union ("SANCU")
is an independent consumer organisation that
protects and promotes
the rights of millions of consumers in South Africa. SANCU has a
statutory right of standing as an accredited
consumer protection
group in terms of
section 78(1)
of the
Consumer Protection Act which
permits it to:
"Commence
or undertake any act to protect the interests of a consumer
individually or to consumers collectively in any matter
or before any
forum contemplated in the
Consumer Protection Act"
>
On
SANRAL's own version there will be:
"Approximately
one million vehicles who utilise the proposed toll road network each
day." Given very high levels of unemployment,
recent hikes in
fuel prices, and the general state of the economy it is in my view
reasonable to accept, on the overwhelming probabilities,
as I do,
that there must be thousands, if not tens of thousands of motorists
and businesses who have to make use of the GFIP freeways
that find
themselves in the same predicament as that experienced and
illustrated by the four individuals, Maphoroma, Tabakin, Osrin
and
Leatse, as well as the disabled members of QASA and others. In my
view the nationwide objections to, and protests against,
the proposed
tolling lend support to such a conclusion.
I
turn to making a few remarks about this proposed urban toll road
network, the fist of its kind in South Africa, which forms the
subject of this case. I do so by briefly summarising submissions on
the subject, in the founding affidavit, which I do not consider
to be
seriously or convincingly controverted in the opposing papers.
Presently
existing toll roads in south Africa are essentially examples of
"rural" or "long haul" tolling where
motorists
are stopped at the toll plazas to pay their dues. The proposed GFIP
network that is the subject matter before us and
that has been the
subject of major public controversy in South Africa since February
2011, is entirely different. It is different
firstly, so the
applicants allege, because the proposed toll road network is an urban
toll road scheme. The sections of road that
have been earmarked for
tolling, constitute the main arteries for the movement of motor
vehicles in and around the two major cities
of South Africa that
constitute the economic and administrative heartland of the country.
It
is different, secondly, so it is argued, because of the massive
numbers of citizens who make use of the proposed toll roads.
It is
argued that the proposed toll roads are used every day by hundreds of
thousands of commuters, urban residents and employees
of businesses
that drive north-south between Johannesburg and Pretoria and in all
directions in and around both cities, and their
adjoining municipal
areas and from both centres to and from the country's major
international airport (O. R. Tambo) situated on
the outskirts of
Johannesburg. The proposed toll road network, that is the subject
matter of this application, is different, thirdly,
so it is
contended, because of the extent to which the road users referred to
above are captive to the use of the network. Just
as well known as
the fact that the proposed toll roads are massively populated on a
daily basis, is the fact, so it is contended
by the applicants, that
they are so populated precisely because there are no viable
alternative metropolitan or secondary roads
available for the use of
urban commuters. This is because the metropolitan and secondary roads
referred to in the founding affidavit,
which include amongst others
the R55, the R515, the M1 or M2 and the Old Johannesburg Road, R101,
are themselves heavily congested
on account of the use of such roads
by persons residing or working locally as well as spill over from
those road users that try
to avoid the congestion of the major
arterial network.
Even
more captive to the proposed toll road network, are the long haul
road users, many of whom are members of the Road Freight
Association,
who travel through the two metropolitan centres. The long haul road
user travelling from the south of Johannesburg
to the north of
Pretoria, for all practical purposes, has no option but to use the
main arteries forming part of the proposed toll
road network. In
reality, so the applicants contend, and I am in agreement with that
submission, ordinary as well as long haul
road users have little or
no choice but to make use of the proposed toll roads.
In
the case of ordinary private road users, the extent to which they are
captive to the proposed toll road network is exacerbated
by the
acknowledged inadequacy of the public transport system in
Johannesburg and Pretoria as well as between the two centres.
Although efforts have been made recently, so the applicants concede,
by inter alia local and provincial government to improve public
transport infrastructure, and effect modal upgrades of buses
mini-buses and railway options, public transport remains hopelessly
inadequate as a viable alternative option to a very high proportion
of residential and business road users within Gauteng.
I
now turn to the trite and well known requirements which the
applicants have to establish in order to obtain the interim
interdictory
relief sought before me. Where this judgment is being
handed down under extremely urgent circumstances over a weekend, it
is not
practicable or appropriate to travel into too much detail.
Where I fail to fully deal with comprehensive and in may instances
compelling,
arguments presented to me by eminent counsel over many
hours, I do so not out of disrespect, but because of, what I hope to
be
obvious, time and logistical constraints.
I
mention the requirements. First there must be a prima facie right on
the part of the applicant to the relief sought. The degree
of proof
required to establish this right is less exacting than in the case of
a final interdict. It is usually recognised that
the applicant must
prove a right which, though prima facie established, is open to some
doubt.
Second,
there must be a well grounded apprehension of irreparable harm if the
interim relief is not granted.
Third,
the balance of convenience must favour the granting of interim
relief. The prejudice to be suffered by the applicants, if
the relief
is not granted, is to be weighed against the prejudice to be suffered
by the respondents, if the relief is granted.
The stronger the
applicants' prima facie right, the less the need to rely on prejudice
to themselves and the converse is also true.
Fourth,
there must be no other ordinary remedy that is available to give
adequate redress to the applicant.
I
turn briefly to the question whether the applicants have established
a prima facie right. It is useful to make a few general remarks
about
this requirement. It has been held that a reasonable prospect of
success in the main action or application is a useful indicator,
when
considering applications for interim interdicts. This is, in my view,
not the only consideration.
In
the proceedings before me, eminent counsel on both sides presented
well researched and impressive arguments on the relevant strengths
and weaknesses of the case of the applicants in the main action, or
in this case, the main application.
I
have carefully considered these arguments. At this preliminary stage,
involving interim relief, the court does not prejudge the
matter, but
should generally refrain from discussing too many details or making a
finding on the issues. The court of first instance
hearing the
application for interim relief has no right to fetter the discretion
of the trial court, or in this case the review
court hearing the main
application. See for example Stewart v Schwab and Others 1956 (4) SA
791 (T) at 794 F to G and the discussion
in Interdicts and Related
Orders by Johan Meyer, first edition 1993.
In
part B the applicants, as I have mentioned, seek orders reviewing and
setting aside the decisions of SANRAL to declare the GFIP
network as
a toll road. These decisions were made in terms of section
27(1)(a)(i) of The Act. As I have already alluded to they
also seek
orders reviewing and setting aside decisions taken by the Transport
Minister in terms of section 27(1 )(a) read with
section 27(4) of the
Act to grant approval to SANRAL to make the aforesaid declarations.
Finally,
they seek orders reviewing and setting aside the decisions of the
fourth and fifth respondents to grant certain environmental
authorisations relevant to the construction process in terms of
section 25 of the National Environmental Management Act number
107 of
1998 ("NEMA"). The applicants argued that they have
established a prima facie right to have these decisions reviewed.
They rely on the review grounds codified in section 6 of the
Promotion of Administrative Justice Act 3 of 2000 ("PA J A").
They contend that the decisions under attack lacked rationality and
they rely on a number of the selected review grounds listed
in
section 6 of PAJA. For reasons already mentioned, I will not travel
into the details.
The
review grounds are briefly the following: 1. The decisions were
unreasonable because collection costs are disproportionate.
The
applicants demonstrated, through figures and calculations, details of
which I cannot dwell on under the present circumstances,
that over a
20 year period the public would be required to pay not less than
R21.3 billion for the operation of the open road tolling
system.
Since the total capital cost of phase 1 of the GFIP was R20.5 billion
this means that road users will be required to pay
more for the
collection of e-Tolls than for the upgrading of the roads.
SANRAL
stated that the figures set out in the founding affidavit in regard
to this subject was correct:
"Based
on a public non-compliance in excess of 60%." This qualification
does not appear to be borne out by the details
contained in the
record. SANRAL has refused to disclose, despite a clear invitation in
the founding affidavit for it to do so,
the true cost of collecting
e-Tolls or the contract concluded with ETC Joint Venture that would
reflect the true cost of collecting
e-Tolls.
Since
the true facts lie exclusively within SANRAL's knowledge an adverse
inference against the latter may, in my view, be justified
in this
respect, for present purposes. This crucial fact about collection
costs exceeding upgrade costs was not appreciated by
the Transport
Minister, so the applicants argue, when he gave approval to SANRAL to
declare the toll roads. Reverting to the previous
subject, I record
that it was further submitted on behalf of the applicants that a
public non compliance rate of 60% would in any
event not be unduly
high. Liability to pay the e-toll attaches to the "user or
driver" of the vehicle at the moment when
an e-transaction
occurs, but SANRAL has no means of identifying the "user or
driver" who declines to pay the e-Toll voluntarily.
The
Minister still continues to deny the correctness of the very figures
that SANRAL has admitted to be correct. The applicants
argue that
this state of affairs vitiates the Transport Minister's decision to
give approval for the declaration of the toll roads
and SANRAL's
decision to issue the declarations. This argument is based on the
review ground to be found in section 6(2)(h) of
PAJA, namely that the
exercise of the power in terms of which the administrative action was
purportedly taken, is so unreasonable
that no reasonable person could
have so exercised the power or performed the function.
The
applicants contend that one of the factors that will necessarily be
relevant to a decision to collect revenue from a particular
source
involves the costs in collecting that revenue. It is common cause
that the functions performed by the Minister and SANRAL
resorts under
"administrative action" as defined in PAJA and that the
Minister and SANRAL perform the functions as "organs
of state"
as defined in the constitution. 2. A second review ground advanced by
the applicants also resorts under section
6(2)(h) of PAJA, supra, on
the basis that enforcement of the tolling system would be virtually
impossible. In their answering affidavit,
the Transport Minister and
his MEC (the third respondent) did not deal with this allegation at
all. On the available figures and
projections, given the anticipated
non-compliance percentages, and numbers of road users, there will,
within seven days of the
implementation of e-Tolling, be
approximately 70 000 non-compliant defaulters from whom toll
collection will have to be made each
day. On SANRAL's own version it
will be required to serve 70 000 summonses per day or a total of
approximately 2,1 million summonses
per month and institute
proceedings against the same number of persons using whatever
procedures are available in terms of the
Criminal Procedure Act and
the rules of the Magistrate's Court. It is submitted by the
applicants that this operation and challenge
will be impossible,
practically, to execute. The calculation is made on a relatively
modest non-compliance percentage. The higher
the percentage of
non-compliance, the more overwhelming the challenge becomes. There
are other issues flowing from this review
ground which I do not
consider it practicable to deal with under these pressing
circumstances.
3.
Another review ground advanced is that SANRAL failed to give proper
notice as required by section 27(4)(a) of the Act. For example
the
published notice of SANRAL's intention to declare the GFIP network as
toll roads, did not indicate that the toll roads would
operate on the
basis of open road tolling and furnished no indication whatsoever of
the likely amounts of the tolls.
All
this is common cause. Section 4(1) of PAJA imposes an obligation to
allow public participation in the case of administrative
action which
"materially and adversely affects the rights of the public".
This requirement was not met, so the applicants
argued.
4.
A fourth ground of review is that the Minister was mislead regarding
the existence of adequate public transport alternatives.
The GFIP
interim social impact report pointed out that "it is important
that the toll option is only considered as part of
an integrated
transport plan and in the event of there being viable alternatives".
The same report stated that "existing
public transport
alternatives are currently not viable and would have to undergo
considerable expansion."
However,
SANRAL's letter to the Minister seeking approval for the declaration
of the toll roads made no mention of this critical
consideration. It
was strongly argued on behalf of the respondents that at the relevant
stage when the decision under attack was
taken, the report, warning
about the absence of viable alternatives, was not yet available.
For
present purposes I am of the view that this argument was adequately
addressed on behalf of the applicants in reply before me.
As pointed
out, it is not required or indeed permitted at this stage to express
a firm view on the merits of any of the review
grounds. Prima facie
establishment of reasonable prospects of success on any one ground,
together with other relevant considerations,
peculiar to this
particular case, will suffice for the applicants.
After
careful consideration of the arguments, counter-arguments and
submissions in reply, I have come to the conclusion that the
applicants have managed to cross this hurdle. Against this
background, I am persuaded that the applicants have managed to
establish
"a prima facie right, although open to some doubt"
to have the decision reviewed and set aside as formulated in prayers
1 and 2 of part B of the notice of motion. Prayer 3 of part B, as I
have said, concerns an application to review and set aside
decisions
by the fourth and/or the fifth respondents to grant certain
environmental authorisations in terms of section 24 of NEMA.
The
challenges by the applicants regarding the merits of these decisions
do not appear to be controverted on the papers. The respondents
rely
rather on a technical argument relating to the failure by the
applicants, as required by section 7 of PAJA, to first exhaust
their
internal remedies. In my view these arguments have also been
sufficiently addressed on behalf of the applicants, in order
to pass
the test applicable at this interim stage of the proceedings.
I
am therefore satisfied that a proper case in the form of a prima
facie right has also been established to have the decisions in
this
regard reviewed and set aside. In the result I am of the view that
the applicants managed to establish the prima facie right
required
for the interim relief prayed for.
I
turn to the second requirement namely that of a well grounded
apprehension of irreparable harm if interim relief is not granted.
I
have referred to affidavits from aggrieved commuters who will be
called upon to pay excessive toll monies which they cannot afford.
On
a general reading of the papers, the weight of the evidence suggests
that there are no adequate alternative routes available
to most of
these commuters to be affected by the e-Tolling system in Gauteng,
neither can they exercise an option to make use of
safe and adequate
public transport. In my view the irreparable harm they will suffer on
an ongoing basis, is self evident. There
is also the ongoing
financial drain that will be placed on SAVRALA, details of which 1
have referred to and the ongoing financial
hardships that will be
visited upon the members of the Quadpara Association of South Africa.
The same applies to the thousands
of members of the South African
National Consumer Union. Counter arguments offered to the effect that
the perceived harm is not
"irreparable", because toll paid
unnecessarily, if it turns out that the final review application is
successful, can
be refunded to millions of aggrieved motorists,
appear to me to be not persuasive enough to justify a finding at this
stage that
the applicants have failed to pass the required test. In
my view a proper case has been made out to establish this requirement
for interim relief.
I
turn to the third requirement, a need to establish that the balance
of convenience favours the granting of interim relief. I have
briefly
referred to this requirement earlier. On behalf of the respondents it
was argued with considerable force that these losses
which SANRAL
stand to suffer may lead to default on its part to meet its
commitments towards the contractors. I am alive to the
fact that
SANRAL may well suffer considerable financial losses through the
inability to levy toll monies during the period pending
the outcome
of the proceedings before the court of review. This could result in
the business rating of SANRAL being downgraded
and also impact on its
ability to execute other necessary projects. The Government, which
guaranteed compliance on behalf of SANRAL,
may then be called upon,
as a result of an acceleration clause in the contract, to pay the
full debt of some R20 billion at once
with possible negative effects
permeating through the economy. These are serious considerations
which I duly reflected on. I also
paid proper regard to counter
arguments offered on the subject by the applicants.
There
is also a question whether the R20 billion debt may not be reduced
considerably if the full amount is paid up front. I also
cannot
ignore the fact that SANRAL and the Transport Minister have in the
past seen fit to postpone the implementation of the scheme
on no less
than four occasions (and two days ago, as I have mentioned, for a
fifth time), despite the projections supra of the
calamities which
may result from such a delay.
On
the other hand tens of thousands of motorists, businesses and
ordinary men and women, including family members of these affected
motorists and business people, will suffer ongoing financial hardship
if the interim relief is not granted. Ongoing and widespread
protest
actions against, and objections to, the proposed tolling underscore
the exceptionally high levels of concern and resistance
on the part
of thousands of aggrieved motorists and business people. By the very
nature of this extraordinary case it is difficult,
if not impossible,
to gauge in real terms the prejudice to be suffered by these
aggrieved road users and business people, but what
is plain is that
it will be very substantial indeed. Given the vast numbers of
motorists and business people involved, I am, after
due reflection,
of the view that on the probabilities the applicants have shown that
the balance of convenience favours them.
I
turn to the requirement that the applicants have to prove that they
have no alternative remedy. In my view this is self evident.
Interim
relief is generally granted to preserve the status quo pending the
outcome of the main action or application. When giving
judgment
earlier in the week on the question of urgency, I pointed out that
there is ample authority for the proposition that an
applicant for
review at a stage when the impugned process (in this case the
tolling) is already well underway, could be confronted
with a
decision not to reverse the process for practical and logistical
reasons, even if the legal challenge turns out to be sound.
For
the above reasons I have come to the conclusion that the applicants
have made out a proper case for the interim interdictory
relief so
that an appropriate order has to be made. Quite apart from any other
consideration I have a sense that this exceptional
case, with its
particular characteristics, and the public interest that it has
evoked, should be afforded the attention and consideration
of a court
of final instance.
I
make a brief observation with regard to the costs of this
application. There is compelling authority for the proposition that
there are sound reasons for not awarding the costs relating to an
interim interdict to a successful applicant in the absence of
exceptional circumstances. If such an applicant turns out to be
unsuccessful in the action or application for final relief, the
cost
order in respect of the application for interim relief may, in
retrospect, turn out to have been unjust.
In
the circumstances I intend ordering that the costs of these
proceedings are to be reserved for decision during the part B
proceedings.
I make the following order, which is also contained in a
draft order marked XYZ, which draft order is made an order of court
at
the same time.
1.
The first respondent is hereby interdicted and restrained from
levying and collecting toll on the following roads, pending the
final
determination of the application for the relief sought in part B of
the notice of motion dated 23 March 2012: 1.1 National
road N1,
section 20 from Armadale to Midrand;
1.2
National road N1, section 21 from Midrand to the Proefplaas
Interchange;
1.3
National road N3, section 12 from Old Barn Interchange to the
Buccleuch Interchange;
1.4
National road N4, section 1 from Koedoespoort to Hans Strijdom Drive;
1.5
National road N12, section 18 from Diepkloof Interchange to Elands
Interchange;
1.6
National road N12, section 19 from Gillooly's Interchange to the
Gauteng Mpumalanga provincial border; and
1.7
National road R21 (also known as the P157/1 and P157/2) sections 1
and 2 from Hans Strijdom Drive to Rietfontein Interchange
(N12)
Province of Gauteng.
2.
The interdict in paragraph 1 above is to operate with immediate
effect.
3.
The costs of the application for the relief sought in part A are
reserved for determination at the application for the relief
sought
in part B.
I
hand down the draft order XYZ.