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[2012] ZAGPPHC 323
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Opposition to Urban Tolling Alliance and Others v South African National Roads Agency Ltd and Others (17141/2012) [2012] ZAGPPHC 323 (13 December 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
NO. 17141/2012
DATE:13/12/2012
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
.....................................
4
th
APPLICANT
and
THE
SOUTH AFRICAN NATIONAL ROADS
AGENCY
LIMITED
................................................................................................
1ST
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
.............................................................................
4
th
RESPONDENT
THE
DIRECTOR-GENERAL, DEPARTMENT OF
WATER
AND ENVIRONMENTAL AFFAIRS
…................................................
5
th
RESPONDENT
NATIONAL
CONSUMER
COMMISSION
..........................................................
6th
RESPONDENT
NATIONAL
TREASURY
.......................................................................................
7th
RESPONDENT
JUDGMENT
LI VORSTERAJ:
[1
] The Applicants apply for the following relief:
1.1
In order that the decisions of the First Respondent to make the
following declarations in terms of section 27(1 )(a) of the
SANRAL
Act be reviewed and corrected or set aside:
1.1.1
the declaration of National Road N1, Section 20: from Armadale to
Midrand as a continuous toll road and the establishment
of electronic
toll points, dated 28 March 2008 and published as Government Notice
No. 349 in Government Gazette No. 30912 dated
28 March 2008;
1.1.2
the declaration of National Road N1, Section 21: from Midrand to the
Proefplaas Interchange as a continuous toll road and
the
establishment of electronic toll points, dated 28 March 2008 and
published as Government Notice No. 350 in Government Gazette
No.
30912 dated 28 March 2008;
1.1.3
the declaration of National Road N3, Section 12: from Old Barn
Interchange to the Buccleuch Interchange as a continuous toll
road
and the establishment of electronic toll points, dated 28
March
2008 and published as Government Notice No. 351 in Government Gazette
No. 30912 dated 28 March 2008;
1.1.4
the declaration of National Road N4, Section 1: from Koedoespoort to
Hans Strydom Drive and as a continuous toll road and
the
establishment of electronic toll points, dated 28 March 2008 and
published as Government Notice No. 352 in Government Gazette
No.
30912 dated 28 March 2008;
1.1.5
the declaration of National Road N12, Section 18: from Diepkloof
Interchange to Elands Interchange as a continuous toll road
and the
establishment of electronic toll points, dated 28 March 2008 and
published as Government Notice No. 353 in Government Gazette
No.
30912 dated 28 March 2008;
1.1.6
the declaration of National Road N12, Section 19: from Gillooly’s
Interchange to the Gauteng/Mpumalanga Provincial Border
as a
continuous toll road and the establishment of electronic toll points,
dated 28 March 2008 and published as Government Notice
No. 354 in
Government Gazette No. 30912 dated 28 March 2008;
1.1.7
the declaration of National Road R21 (also known as the P157-1 and
P157-2) - Sections 1 and 2: from Hans Strydom Drive to
Rietfontein
Interchange (N12); Province of Gauteng, as a toll road and the
establishment of electronic toll points, dated 28 March
2008 and
published as Government Notice No. 800 in Government Gazette No.
31273 dated 28 July 2008;
1.2
An order that the decisions of the Second Respondent in terms of
section 27(1 )(a) read with section 27(4) of the SANRAL Act
to grant
approval to the First Respondent to make the declarations listed in
paragraphs 1.1.1 to 1.1.7 above, be reviewed and corrected
or set
aside.
[2]
In the notice of motion the Applicants also claimed for the review
and setting aside of a number of environmental authorizations
in
terms of
Section 24
of the
National Environmental Management Act, 107
of 1998
. Those claims are not persisted with by the Applicants and
have been withdrawn, against the Third and Fourth Respondents in this
case. Consequently, the Third and Fourth Respondents did not
participate in the hearing of this matter. The Sixth Respondent also
did not participate in the hearing.
[3]
The Applicants also apply for condonation for the late service and
filing of the review application in which the aforesaid relief
is
claimed by the Applicants. That application is necessary to overcome
the difficulty caused by the fact that the review application
was
served and filed by the Applicants well outside the time limit of 180
days specified by the Promotion of Administrative Justice
Act
(“PAJA”). That application for condonation is disputed by
all the Respondents who participated in the arguments
at the hearing
of this matter.
It
is convenient to deal with the merits of the application first.
I
do so below,
[4]
A concise factual history of events which gave rise to this
application for review and which is common cause on the papers before
me, is the following:
4.1
During 1996 a White Paper on National Transport Policy was compiled.
In that document transport was recognized as one of the
Government's
five main priority areas for socio-economic development. Tolling was
recognized as a possible method to derive income
necessary to provide
for road development and infrastructure improvements without imposing
demands on National Treasury.
4.2
During January 1998 the Gauteng Government published a proposed toll
road strategy for Gauteng. That document recognized the
lack of
traditional funding for the development of Gauteng roads and accepted
in principal the use of tolling as a funding mechanism.
4.3
In December 2001 the Gauteng Government published a further report
which was a macro-economic analysis of the Gauteng toll road
strategy. The use of toll was considered as a means of funding of the
costs associated with road development and expansion.
4.4
In August 2005 the First Respondent (SANRAL) prepared a Gauteng
Freeway Improvement Proposal (GFIP).
4.5
Thereafter a macro-economic analysis and projections relating to road
infrastructure was prepared for Gauteng Government. In
that document
toll was considered as a means of funding and the costs in relation
to roads infrastructure.
4.6
In August 2006 SANRAL appointed an independent consultant to conduct
specialized toll and traffic research studies and modeling
for the
GFIP. From 2006 until mid 2007 SANRAL made several presentations to
the Gauteng Provincial Government, and Metropolitan
Councils and
Portfolio Committees. As part of that process the Provincial and
Metropolitan Council representatives participated
in cluster meetings
which focused on traffic and toll studies that were being conducted.
These studies explored, inter alia, the
most equitable toll strategy
and the impact of tolling on the existing road network and the
proposed freeway network. SANRAL also
appointed independent experts
to provide a traffic and toll feasibility study report. In these
reports detailed financial aspects
of the proposed tolling of GFIP
was considered and analyzed.
4.7
The aforesaid actions undertaken by SANRAL culminated in the
submission by the National Department of Transport of the GFIP
toll
road
scheme as a proposal to National Cabinet. That proposal dealt with
the various funding models and advocated a user-based toll
scheme
with the electronic recording of tolls. The proposal indicated that
the anticipated toll that would be applicable if the
scheme was
adopted would be in the region of 50 cents per kilometer. That
estimated tariff was also reported to the media at the
time.
4.8
In July 2007 Cabinet approved the implementation of the GFIP as a
State implemented toll scheme and in October 2007 the then
Minister
of Transport officially announced the launch of the GFIP. As a result
of the acceptance by National Cabinet of the GFIP
toll road scheme,
the toll road declarations which are the subject of review in this
case, took place. The said toll road declarations
took place in the
exercise of the powers provided for in Section 27(1 )(a) of the
SANRAL Act to SANRAL and the Minister of Transport
(Second
Respondent) respectively.
[5]
During March 2012 the Applicants lodged the present application for a
review. Subsequent to that, during April 2012 an application
was
brought by the Applicants for an urgent interdict restraining the
implementation of the toll road scheme. Pursuant to that
application,
an interim interdict was granted. That decision was taken on appeal
to the Constitutional Court which upheld the appeal
and set-aside the
interim interdict order. An important judgment was given by the
Constitutional Court which affected the grounds
of review which the
Applicants relied upon when the application was first launched in a
material respect. The Applicants originally
relied upon the alleged
failure to take into account the costs of the GFIP scheme as well as
the alleged costs of operating the
scheme and failure to disclose
those costs to the general public in the published notices inviting
comments on the scheme as the
basis for the allegation that relevant
considerations were not taken into account, irrelevant considerations
were taken into account
and the alleged unreasonableness of the
decision of the Second Respondent to approve of the proposal
submitted to it by SANRAL
and the subsequent declaration by SANRAL of
the toll roads as I have already referred to above. The
Constitutional Court, in its
judgment said the following:
“
(94)
The main thrust of the respondents’ review is the alleged
unreasonableness of the decision to proclaim the toll roads.
But
unreasonable compared to what? The premise of the unreasonableness
argument is that funding by way of tolling is unreasonable
because
there are better funding alternatives available, particularly fuel
levies. But that premise is fatally flawed. The South
African
National Roads Agency Limited has to make its decision within the
framework of Government policy. That policy excludes
funding
alternatives other than tolling. It is unchallenged on review. But
the High Court order effectively went against it. Since
the making of
the policy falls within the proper preserve of the executive and was,
on the papers before the Court, perfectly lawful,
the order
undermining it was inappropriate. ”
"(95)
No fundamental rights of the respondents beyond that of just
administrative action are at stake here. The Courts in this
country
do not determine what kind of funding should be used for
infrastructural funding of roads and who should bear the brunt
of
that cost. The remedy in that regard lies in the political process."
[6]It
is clear from the above dicta in the Constitutional Court judgment
that the grounds of review in this review application is
confined to
the question of just administrative action or otherwise in the
process of declaration of the toll roads. It is also
clear that the
costs of tolling, the merits of using toll as a means to finance the
GFIP scheme and the proposed e-toll tariffs
which would be necessary
to finance the scheme, are irrelevant considerations for purposes of
this review. Those considerations
fall within the preserve of
executive government and therefore outside the jurisdiction of this
Court.
[7]
1 now turn to deal with the specific grounds of review relied on by
the Applicants. The grounds for review can be stated to
be the
following:
7.1
Failure to comply with peremptory provisions of the SANRAL Act which
are designed to ensure proper public participation;
7.2
Failure to give adequate notice to ensure proper public
participation;
7.3
Unlawfulness of the GPIF scheme resulting in arbitrary and unlawful
deprivation of property.
[8] FAILURE TO COMPLY WITH PEREMPTORY
PROVISIONS OF THE SANRAL ACT:
To
understand this ground of review regard must be had to particular
provisions of the SANRAL Act and the interpretation of those
provisions contended for by the Applicants.
8.1
Section 27(1) of the Act provides:
“
(1)
Subject to the provisions of this section, the Agency -
(a)
with the Minister’s approval -
(i)
may declare any specified national road or any specified portion
thereof, including any bridge or tunnel on a national road,
to be a
toll road for the purposes of this Act. ”
“
(4)
The Minister will not give approval for the declaration of a toll
road under subsection (1)(a) unless -
(a)
the Agency in the prescribed manner, has given notice, generally, of
the proposed declaration, and in the notice -
(i)
has given an indication of the approximate position of the toll plaza
contemplated for the proposed toll road;
(ii)
has invited interested persons to comment and make representations on
the proposed declaration and the position of the toll
plaza, and has
directed them to furnish their written comments and representations
to the Agency not later than the date mentioned
in the notice.
However, a period of at least 30 days must be allowed for that
purpose;
(b)
the Agency in writing -
(i)
has requested the Premier in whose Province the road proposed as a
toil road is situated to comment on the proposed declaration
and any
other matter with regard to the toll road (and particularly, as to
the position of the toll plaza) within a specified period
(which may
not be shorter than 60 days); and
(ii)
has given every municipality in whose area of jurisdiction the road
is situated the same opportunity to so comment;
(c)
the Agency, in applying for the Minister’s approval for the
declaration, has forwarded its proposals in that regard to
the
Minister together with a report on the comments and representations
that have been received (if any). In that report the Agency
must
indicate the extent to which any of the matters raised in those
comments and representations have been accommodated in those
proposals; and
(d)
the Minister is satisfied that the Agency has considered those
comments and representations. ”
[9]
Although Section 27(4) of the SANRAL Act and the interpretation
contended for by the Applicants was not originally in their
founding
affidavit advanced as a ground for review, the lack of public
participation was so alleged. I shall deal with the amplified
ground
of review as it was argued before me. The crux of the argument
advanced and debated by the Applicants is as follows:
9.1
SANRAL must submit a proposal to the Minister in relation to a
proposed declaration of a toll road. That proposal must at least
contain basic information relating to the capital costs involved, the
costs of collecting toll and the suggested tariff of toll
which is
envisaged. Without that basic information the Minister cannot give
informed consent to the declaration of the toll road
in question. The
notice that must be given generally of the proposed declaration as
provided for in Section 27(4)(a) must therefore
at least contain the
information about the proposed toll road which serves before the
Minister as interested persons who are entitled
to notification of
the proposed toll declaration, cannot give meaningful comment or
representations unless they have sufficient
information about the
proposed costs of the scheme and the probable tariffs. The Applicants
contend that this interpretation is
necessary to give to Section 27
of the Act a meaning which accords with the purpose which the
obligation to given notice of the
proposed toll declaration must
serve.
9.2
I cannot agree with this interpretation contended for by the
Applicants. It is clear from the Constitutional Court judgment
which
I have quoted above that the capital costs of the proposed toll
scheme as well as the operating costs and likely tariff to
be imposed
are matters which are not open for comment or public participation by
potential interested or affected persons, as those
matters fall
squarely within the domain of the Executive Government as a matter of
financial policy. The basic assumption on which
that argument rests,
is flawed. It assumes a right of public participation in relation to
matters which are not open to public
participation. Section
27(4)(a)(i) and (ii) and 27(4)(b)(i) is clear that it is the physical
aspects of the proposed toll road
declaration and particularly the
situation of the proposed toll plazas which are open for comments and
representations by interested
and affected parties including the
municipalities and the Premier of the relevant Province, and no more.
Accordingly, I am of the
view that this ground of review is without
substance and cannot succeed.
[10] FAILURE TO GIVE ADEQUATE NOTICE
TO ENSURE PROPER PUBLIC PARTICIPATION:
It
is common cause that the proposed toll road declarations were
published in the Government Gazette and in newspapers circulating
in
the areas in question. The Applicants contend that this is inadequate
and that more
should
have been done by SANRAL. The suggestion is made that particular
notices had to be put up adjacent to the roads in question
to attend
possible interested persons of the proposed toll declaration and even
that it should have been further ventilated in
the public media like
radio or television. In terms of
Section 4(1)
of the
Promotion of
Administrative Justice Act, 3 of 2000
, dealing with administrative
action affecting the public, it is specifically provided that an
administrator is authorized to follow
a procedure which is considered
fair and which is empowered by any empowering provision of the
legislation in question. In the
instant case SANRAL acted in terms of
the provisions of Section 27(4)(a)(i) and (ii) of the SANRAL Act.
That process was considered
to be fair in the circumstances by
SANRAL. I have no reason to differ from that conclusion. The
publications in the Government
Gazette and newspapers circulating in
the areas in question were clearly adequate to inform interested
persons of the proposed
toll declaration. The argument that such
notification was inadequate and therefore unfair, rests on the
erroneous assumption that
each and every user of the proposed toll
roads had a right to be informed, given the importance of knowledge
of the proposed expenditure
of the scheme and the proposed tariffs
that could be levied in due course. Consequently, this ground of
review must also fail.
[11] SECTION 25 OF THE CONSTITUTION -
UNLAWFUL DEPRIVATION OF PROPERTY:
This
ground of review, as I understand it, is that toll levies collected
from
motorists
traveling on the declared toll roads and also future toll roads which
might come into existence in the process of expansion
of the roads
infrastructure will amount to an unlawful deprivation of property as
is referred to in Section 25 of the Constitution.
There are two
answers to this contention. Firstly, such deprivation can only take
place unlawfully if the toll road scheme is unlawful.
Secondly, the
payment of toll levies will take place in terms of an act of general
application, being the SANRAL Act. I have already
concluded that the
GPIF scheme is lawful and that the toll road declarations in issue in
this application have not been shown to
be reviewable on lawful
grounds. Consequently, this ground of review or objection must also
fail.
[12]
It follows that in my view the application cannot succeed.
[13]
What remains to be considered is question of costs. The question of
condonation for the late filing of the application for
review does
not arise in view of my judgment on the merits of the application
which I have dealt with above. The Constitutional
Court ordered that
the costs of the appeal before it are to be costs in this review. All
the parties that appeared before me are
agreed that any costs order
that I make should include the costs consequent upon the employment
of three counsel. The First Respondent
asks me to make a punitive
order as to costs against the Applicants. The basis of that request
is that the Applicants, in their
effort to overcome the problem of
lateness with the lodging of the application for review, submitted
that part of that delay was
caused by untransparent behaviour on
behalf or by SANRAL.
Argument
was made with reference to particular allegations in the papers filed
on behalf of the Applicants. Those allegations are
of speculative
nature only and is founded on an inference drawn by the Applicants
that SANRAL dragged its feet to deal with public
participation
aspects in view of the World Cup Soccer event that was on its way. It
is correct, as counsel for the First Respondent
argued, that those
allegations amount to no more than inferences which the Applicants
seek to draw from the facts as they perceived
them at the time. I
have given careful consideration to this aspect. The Applicants were,
and probably still are, in favour of
the upgrading of the freeway
road system in Gauteng. When they learnt about the proposed toll
tariffs which were ventilated in
the media, they became bewildered
and concerned. They distrusted SANRAL and resolved to fight the
implementation of the GFIP with
everything at their disposal.
However, I am unable to say that the Applicants acted mala fide even
if they went too far in relying
on inferences drawn from the papers
in their argument. Consequently, I am not disposed to grant a
punitive order as to costs. Finally,
shortly before the commencement
of the hearing of this matter and interlocutory application was
brought by the Applicants against
inter alia the First Respondent in
which disclosure and the provision of copies of certain documents
referred to by the Respondents
in affidavits which served before the
Constitutional Court was claimed. That application did not proceed. I
do not think there
was any merit in that interlocutory application
and that it was wisely abandoned by the Applicants. Nonetheless, the
Applicants
should bear the costs of that application.
[14]
I make the following order:
1.
The application is dismissed.
2.
The Applicants are jointly and severally ordered to pay the costs of
the Respondents excepting the Sixth Respondent which did
not take
part at the hearing.
3.
The Applicants are ordered to pay jointly and severally the costs
reserved by the Constitutional Court to the Respondents who
participated in that appeal before the Constitutional Court.
4.
The Applicants are ordered to pay jointly and severally the costs of
the interlocutory application which was abandoned to the
Respondents
to that application.
[15]
The costs orders above include, where applicable, the costs
consequent upon the employment of three counsel.
LI
VORSTER AJ