The Opposition to Urban Tolling Alliance (Outa) will seek leave to appeal the most recent court ruling in the e-toll battle, it announced on Monday. The organisation’s members unanimously agreed on the merits of an appeal and will keep fighting Sanral, said its chairman Wayne Duvenage. But first, the fight before the fight is on – for funding. By GREG NICOLSON.
Wayne Duvenage, the face of the legal battle against e-tolls, announced the group’s decision to appeal the judgment delivered by the North Gauteng High Court after Outa’s members were locked in discussions with its legal team on Monday. In December the court found in favour of the SA National Roads Agency Limited (Sanral) after Outa argued that the implementation of e-tolls lacked the legally required public participation.
“We found that the judgment was seriously flawed. We have a strong case and we’re not just hanging on to something for the sake of hanging on to it,” Duvenage told Daily Maverick on Monday. He was confident the judge would grant leave to appeal based on the issues around public participation and some of the technical decisions of Judge Louis Vorster to set aside Outa’s arguments. “It’s a very important case so I don’t think [the judge] will take it lightly.”
Vorster focused his judgment on the proclamation of the roads as tolled roads, the public participation process, and whether it would amount to an unlawful deprivation of property. “In my view the application cannot succeed,” said Vorster, who dismissed each of Outa’s points and ordered it to pay Sanral’s legal costs.
Duvenage said on Monday that while Outa’s members agreed they should appeal the merits of the ruling, “Our biggest concern now is around funding.” Outa will meet on Tuesday to discuss new methods of drawing funding from private individuals and businesses, and hopes to convince them that if the judgment stands it will set a precedent, by not forcing the state to consult the public adequately before embarking on similar large-scale infrastructure programmes.
Outa has raised R7 million for its legal challenges, but will need around R4.5 million to R5 million more to pay its current costs and that of an appeal. “We need it very quickly,” said Duvenage. “In the case of an appeal, Outa will be hard-pressed with shortage of funds to defend the appeal and will conduct heightened calls and new marketing initiatives to raise a few million to challenge the appeal, while Sanral remains relaxed in this space, knowing that citizens taxes will fund their mounting and colossal legal expenses,” wrote Duvenage in Daily Maverick in December.
In addition to the Outa court challenge, Cosatu has vowed to roll out a campaign of civil disobedience if e-tolls are implemented after Transport Minister Ben Martins makes his expected announcement on the 11,000 public submissions received on tolling.
Duvenage said Outa had not been working directly with Cosatu, but he nonetheless believes that together the legal challenge and threat of civil disobedience have the greatest chance of success. “We operate independently but we do converse. They are two different strategies but they complement each other.” Outa expects a strong show of public disobedience against e-tolls but the group agreed it could not leave the fight up to Cosatu. “It would be wrong of us not to appeal,” said Duvenage. “It doesn’t help to just say fight on.”
He said the decision to appeal had been received “extremely positively”. “I think in society in general people have been as shocked by the decision, that judgment, as we were… I think people are pissed off; people are angry. People know when something is so fundamentally flawed it needs challenging.”
After the High Court ruling, Sanral CEO Nazir Alli defended the implementation of e-tolls. “We are not here to crook, we are not going to be shedding any kind of crocodile tears or anything of that sort… We are here to implement government policy. I would like all of us to turn around and respect the decision of the courts,” he told reporters.
The government will be able to start tolling the freeways as soon as it decides it is ready. Outa is confident of its case but faces impending tolling and lagging public interest in the issue. Before it even sees its next courtroom, the opposition group will need to whip up the widespread but increasingly dormant anger on the issue for both public and financial support. DM
Photo: N1 Highway (Greg Marinovich)