After three weeks of absorbing body blows, the government has revealed it plans to appeal the landmark e-tolling court judgment. ALEX ELISEEV wonders who will end up holding their gloved fist raised.
Judge Bill Prinsloo’s judgment was seen as government being knocked unconscious by civil society. The subsequent silence from the SA National Roads Agency, the resignation Nazir Alli and media reports that the deadline for an appeal had lapsed, made many call the fight.
The days ticked over like a referee counting time. Then, just as his lips parted and he began to form the word “ten”, the wounded boxer stirred and rose up off the mat, raising his gloves in a sign of being ready to fight again.
Government spokesman Jimmy Manyi yesterday told Parliament that they were ready to wipe the blood off and fight back.
“As a country we need to demonstrate unequivocal commitment to meet all our contractual obligations, including repaying the debt incurred in the construction of the Gauteng Freeway Improvement Project,” he said. “Defaulting on our debt is simply not an option.”
He spoke about the “observable changes” to the province’s highways and said a big bundle of money had been borrowed to make this happen.
Manyi said a special committee on e-tolling, chaired by deputy president Kgalema Motlanthe, had given feedback to Cabinet but called for more work to be done in certain areas.
He stressed that government was taking note of what the public and various organizations were saying, and would continue to do so. The emphasis on public participation and awareness is understandable, considering it cut to the heart of the court case, with Prinsloo ruling that a full picture of the project emerged only earlier this year.
Manyi made it clear that government had not lost faith in Sanral and would continue to use it to build new road infrastructure and “take the necessary steps to ensure Sanral’s financial soundness pending the outcome of the legal and consultation processes”.
Interestingly, Manyi revealed that the written judgment had only been received on Wednesday, explaining why the announcement has taken this long. He said the government’s lawyers were studying the judgment and finding the right grounds upon which to base their appeal.
The late arrival of the judgment will probably play in government’s favour when the time comes for it to convince Prinsloo to grant leave to appeal.
The Opposition to Urban Tolling Alliance believes the deadline for an appeal has passed and the state will now have to convince the court to make an exception. But one of the senior advocates from the other side said the deadline only expires on Monday, leaving them some room to manoeuvre. Or, as another lawyer asked, does the clock only start once the written judgment is made available? Whatever the case, it seems government should be able to make an argument for the delay based on the judgment's late arrival.
What remains to be seen, however, is whether it will succeed in convincing Prinsloo that another court may differ with his interpretation.
Government will likely build on its argument that a court should not decide on matters that carry with them such massive financial implications. It has already claimed that economic policy decisions should be left to the experts. It’s fairly unusual to see an appeal against an urgent interdict and it will be interesting to see whether more precedents are set.
Meanwhile, Outa chairman Wayne Duvenage says though they were surprised by the appeal – since there was no warning of it over the past few weeks – they are ready to go another round.
Duvenage says they’ve come too far, and the judgment means too much, for them not to defend it. The ultimate price is a full review of the project, and they’ll do whatever it takes to get there.
Ironically, the alliance’s lawyer, Pieter Conradie, said they had just received three boxes of documents from Sanral, relating to e-tolling. After securing the interdict, Outa requested a full record of the project and all its agreements.
The transport and environmental affairs departments were also required to share various documents, but have not done so and seem unlikely to until the appeal is finalised. Could Sanral’s surrender of the record, hours before an appeal is announced, be a coincidence or does it once again speak of the confusion between all those involved (such as the last-minute decision to postpone the launch by a month while the court case was wrapping up)?
Either way, the ball is now in the government’s court as to when and how it will proceed with its appeal.
At the same time, news of Cabinet’s decision to challenge the interdict was met with some pretty fierce condemnation. The Democratic Alliance claimed it was doomed to fail and was a further waste of taxpayer’s money. The Justice Project SA questioned whether it was an attempt to stop the review from going ahead in order to keep the corruption (of which there is no firm proof yet) buried. Others asked how the appeal could be unveiled when the lawyers were still busy reading the judgment.
But perhaps this was just a method to buy some time. What’s more intriguing is how far the ANC/Cosatu discussions are, with just a few days left in the month that were added on to the (now hypothetical) launch date. Or did Motlanthe’s commission, which brought together ministers from various powerful departments, overshadow this?
At least it seems some lessons have been learnt, with government making the announcement in a single, unified voice – and not following up a tweet from inside a political meeting.
Finally, while the appeal is a routine step in a legal process, what was truly surprising was the announcement of a “reveal all” briefing due to be held by Motlanthe next week. Manyi said the meeting, due to take place in Cape Town on Thursday, would be a full debrief of the work carried out by Motlanthe’s commission into e-tolling.
He said it would lay bare the history, the costing, the reasons behind the model that was chosen and even who benefited from the tenders. The issue of alternative funding should also be discussed, along with plans on how to keep Sanral afloat. If this briefing turns out to be as comprehensive as that, it could be a game changer and something for all of us to watch closely.
If not, the focus will shift back to the courts, where the bell will ring for Round 2. DM
Photo by Greg Marinovich.