You cannot imagine two more dramatically different judgments than those delivered by judges Bill Prinsloo and Louis Vorster, both sitting in Pretoria’s North Gauteng High Court.

Judge Prinsloo’s was a “power to the people” kind of ruling, which filled everyone’s hearts with the nectar of revolution and dreams of an active citizenry. There were tears of joy, speeches about the birth of a new consciousness and images of Treat Williams (acting in the musical Hair) swinging on the chandeliers and smashing to smithereens the crystal glasses used by fat-cat politicians to toast their victory over millions of angry motorists. Or maybe that was just me. 

Judge Vorster’s judgment, however, was ice-cold, devoid of drama and packed into 18-pages a considerable amount of pain and suffering for the Opposition to Urban Tolling Alliance’s Wayne Duvenage and his team. It’s conclusion was that government must be left to govern and courts should not meddle in policy. 

For a bit of context: The alliance brought an application against e-tolling in two parts. The first was an urgent interdict to halt the launch of the highly unpopular project until a full judicial review (the second part) could be held. Prinsloo granted this order in April. Government loaded its guns and appealed straight to the Constitutional Court, which lifted the interdict and – as advocate David Unterhalter argued – drove a stake through the heart of the alliance’s case. 

In essence, the highest court in the land found that: “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.” In other words: Respect the wall of separation between the judiciary and the executive. 

Vorster made it clear he was bound by the decision of a higher court and then added his own thoughts: “It is clear from the Constitutional Court judgment 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 (by Outa) 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.”  

These words may send a chill down the spine of anyone who believes the public has a right to know everything about a project of this magnitude. 

With the debate over the funding model and tariffs off the table, what was left was the alliance’s main argument that the public was deliberately kept in the dark and that Sanral slipped e-tolling through inside a Trojan horse called the 2010 Fifa World Cup. The implication of this was that the public was not properly consulted. The term used was “meaningful participation”. 

It was an astonishing claim to make and Sanral and the Treasury promptly took umbrage of the highest order (forgive the phrase, but we are dealing with matters of law). They called on Vorster to slap a punitive cost order against Outa or its advocate and challenged their opponents to prove their claim. 

In the end, Vorster was not impressed and ruled that the accusations against Sanral were mere inferences (a shade softer than what Sanral had described the allegation as: a conspiracy theory). 

“When they (Outa) learned about the proposed toll tariffs which were ventilated in the media, they became bewildered and concerned,” Vorster went on. “They distrusted Sanral and resolved to fight the implementation of the GFIP (Gauteng Freeway Improvement Project) with everything at their disposal.” 

He stopped short of granting punitive costs by reasoning that the applicants had not acted mala fide (in bad faith), even if they went too far and made claims without proving them. 

Vorster was, in fact, convinced that enough public consultation had taken place. 

“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 alliance had argued that about 30 objections were received from the public when the project was being proposed, versus the thousands that poured in during a recent series of hearings. 

Vorster further ruled that e-tolling was lawful and that there is no lawful reason to stop it. He ordered the alliance to pay the cost of its legal team and that of government, in both the high court and the Constitutional Court. With silks like Unterhalter and Jeremy Gauntlett, the costs order was an anvil falling from a skyscraper. 

The reaction was swift and mostly predictable. Sanral did a victory lap. Nazir Alli swallowed much of what he really wanted to say but did lash out at Outa for “disrespecting and disregarding” the earlier Constitutional Court judgment. He warned about the rule of law being undone and took a swipe at the media, accusing it of disseminating “lies, untruths and half-truths”. Alli – who had a particularly tough eight months (his failed bid to resign, becoming public enemy number one, etc) – called on motorists to pop out and buy their e-tags. 

Duvenage put on a brave face. He called the judgment a “sad day for the country’s democracy”, meaning the government has gone against the will of the people. He maintained the funding model is wrong and will fail, while urging motorists not to buy e-tags. He questioned whether Sanral will ever be ready to launch e-tolling and asked for more time to study the judgment and decide whether there will be an appeal or how they plan to deal with the costs order. Because of funding and the Constitutional Court’s ruling, it’s not likely this legal battle will go any further. 

With a snag in Parliament, e-tolling is not likely to start until at least February. Sanral now has permission to take off but questions remain about whether it will hit turbulence (civil disobedience, threats of more strikes and its ability to cope with the daunting administrative side of the project). 

The Democratic Alliance called for a referendum. Cosatu said it had not placed all its eggs in one basket and will continue the struggle. And constitutional expert Pierre de Vos blamed the media and civil society for squandering an opportunity to object to e-tolling at the right time and then waking up far too late. 

“Citizens failed to do their bit to block such decisions because they were too busy making money or planning their next oversees holiday. It is the media and ordinary citizens who failed our democracy in this case – not our courts,” De Vos said. 

A lesson from all of this is that if you’ve been sitting on the fence wondering whether to get more involved in civil society, perhaps it’s time to jump down. I won’t preach about going to meetings, writing formal objections or toyi-toying in the streets, but the point is simple: find a way to play a part. Whether Sanral deceived the public or people failed to act in time, the e-tolling story could have played out very differently. If you feel angry and offended by how e-tolling was rammed through, help make sure it doesn’t happen again. 

I spoke to Duvenage moments before the judgment was handed down and he said that whatever the decision, Outa has done enough to educate the public. It certainly has. The question is: were we listening? DM

Photo by Greg Marinovich.