Judgment reserved in Cape toll battle
Dane McDonald, Fin24
Cape Town – Western Cape High Court presiding Judge Ashley Binns-Ward has reserved judgment on Tuesday in the City of Cape Town’s bid to have a Sanral decision to toll highways in the Cape set aside.
In 2008 Sanral announced its decision to toll sections of the N1 and N2 highways in the Cape Winelands.
In its concluding arguments City lawyer, Geoff Budlender SC, told the court that Sanral showed that it had plans to act unlawfully.
According to Budlender the contract between Sanral and the concessionaire (Protea Parkways Consortium) required Sanral to propose a base toll tariff at the beginning of the process.
According to Budlender the contract is binding on Sanral and the minister of transport.
“If they set tariffs below the base toll tariff, Sanral and the government will have to pay,” he said.
City lawyer, Nazreen Bawa, explained that the "minister’s hands will be tied and that she would have to approve the tariff or use government funds to pay".
The court heard on Monday that the Minister of Transport at the time, Jeff Radebe, made the decision to toll the Cape N1 and N2 highways on the basis that the state would not carry any costs.
The City has estimated that toll fees will be set at 74c per km, which amounts to three times that which Gauteng users currently pay.
Budlender argued that the toll fees would be determined unlawfully by "fettering".
“Sanral shows a clear indication to act unlawfully,” he said.
It can be interdicted for doing so, Budlender urged presiding judge Ashley Binns-Ward. “The City is entitled to an interdict.”
City's delay 'unreasonable'
The issue of why the City delayed in bringing its application to court featured consistently throughout court proceedings.
In Sanral’s heads of argument its lawyer, Bruce Leech, argued that the City needed to explain its delay in terms of the Promotion of the Administrative Justice Act (PAJA).
According to the PAJA review proceedings “must be brought without unreasonable delay and in any event not later than 180 days...”
Budlender on Tuesday conceded that the City’s delay in bringing the application was unreasonable, lengthy, and not adequately explained.
He urged the court to weigh the latter against an “unlawfully built” toll project “that will affect all the people of the City over a period of thirty years”.
“Public money amounting to at least R59bn in today’s money will be paid for a project that was unlawfully authorised,” Budlender said.