South Africa

Constitutional Court lifts e-tolling ban, Vavi vows to plough on

By Sipho Hlongwane 20 September 2012

Just hours after the Constitutional Court struck down an interdict on the e-tolling system, Cosatu general secretary Zwelinzima Vavi vowed to continue to fight. The avenues for a political solution are not closed yet. By SIPHO HLONGWANE.

Cosatu general secretary Zwelinzima Vavi has vowed to continue to oppose the Gauteng Freeway Improvement Project (or the e-tolling system). He was speaking on the sidelines of the Cosatu elective congress just a couple of hours after the Constitutional Court (ConCourt) struck down an interdict by the High Court to stop the e-tolling system from going ahead until a hearing in November.

The decision means that The South African National Roads Agency can now implement the system without needing to wait for the High Court to review the decision in full.

“There will be no e-tolls,” Vavi said. “Our mobilisation is not over. We are saying to the people who joined us in the trenches: ‘don’t drop your guns’.”

The ConCourt said that the interdict handed down in April had to be struck down because the court failed to consider the separation of powers in its judgement.

It said that in the absence of any proof of unlawfulness, the power to implement policy resides in the exclusive domain of the executive.

“The interim order granted by the high court on 28 April, 2012, is set aside,” said deputy chief justice Dikgang Moseneke.

The e-tolling system was supposed to go live in May, but the High Court granted the Opposition to Urban Tolling Alliance (Outa) an interdict on April 28. A full review needed to be carried out first, and Sanral was prevented from levying in the meantime. The agency and the finance ministry appealed the decision, largely based on the difficult financial position that the ban them in.

Vavi said that the opposition to e-tolling that Cosatu mounted was never a question of legality.

“The Constitutional Court affirmed that the executive has a right to determine policy. Our objection to e-tolling is a political decision. We object to the privatisation of our roads,” Vavi said.

“Our objections remain. We remain opposed to e-tolls.”

Discussions with a government delegation to Cosatu were still happening. When it became clear to government that Outa and trade union federation were going to fight the system to the death, deputy president Kgalema Motlanthe was put in charge of a cabinet delegation that would try and find a solution that pleased all people.

Vavi said that it would be a serious mistake for the government to charge ahead with e-tolls because of the judgement.

“Discussions with the government delegation have not ended. Government must not make the mistake of thinking that it can willy-nilly apply e-tolls now,” he said.

The e-tolling system has been a cause for bad blood between Cosatu and the ruling African National Congress (ANC) for most of 2012. In May, a mini war of words erupted between Vavi and ANC secretary-general Gwede Mantashe after the two alliance partners met. The union federation said that it was managing to convince the ruling party that the levying policy was a bad idea, but Luthuli House begged to differ.

“It is not helpful for any of us to exaggerate what comes out of an engagement,” Mantashe said at the time. “What happened is that we all agreed that the highway improvement project delivered good roads. We all accept that there is debt to be paid. We agree that the government of South Africa has a duty to maintain the roads. The user-pay principle is not an issue. User-pay is a fact of life. The issue is whether e-tolls is the best system and whether the revenue is distributed properly.”

One of the reasons why the Treasury has taken such an interest in the e-tolling case is that it borrowed vast amounts of money to build the system. The guarantee on those loans was the levies that would be exacted. If the government couldn’t charge the e-tolling rates, it would have to take money from elsewhere to repay those loans.

In June, Motlanthe said, “The court decision has major financial implications for Sanral and the country. Sanral borrowed R20 billion to fund the Gauteng freeway improvement project, based on the knowledge that it would service the debt from the revenue collected though the tolling system,” Motlanthe said.

“We take the view that the court judge Prinsloo overstepped the line in terms of essentially imposing a moratorium on the collection of tolls, which has huge implications. The three arms of the state have to work co-operatively with each other without encroaching on each others’ responsibilities and authority.”

The timing of the decision is a little awkward for the ANC – the party has been on a massive lobbying offensive within Cosatu to try to soften the impact of Vavi’s harsh criticism against the Zuma administration. Unions that were formally virulently anti-Zuma, like the mineworkers’ union, have softened their rhetoric and the congress did not feature a showdown between the different factions as was expected. The point of this was to make sure that Cosatu does not agitate for leadership change in Mangaung, but Vavi has once again come out swinging against a policy of the government. While e-tolling is very unlikely to be the main point of difference between Vavi and Zuma at Mangaung, it does help shatter the illusion that all is now hunky-dory between the two. DM

Photo by Sipho Hlongwane.


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