Appeals court puts brakes on Sanral’s Western Cape e-toll plans

THE South African National Roads Agency (Sanral) has been dealt a major blow after the Supreme Court of Appeal (SCA) on Thursday effectively put the brakes on its plan to toll the N1 and N2 in the Western Cape.

The city of Cape Town is vehemently opposed to Sanral’s tolling plans.

In 2015, the high court in Cape Town ruled in the metro’s favour by setting aside the declaration to toll sections of the highways. The judgment emboldened opponents of the agency’s e-tolls in Gauteng.

The city had approached the court, accusing Sanral of failing to follow due process when it decided to toll the N1 and N2 in the Winelands.

The court ruled that if Sanral wanted to proceed with the project, it had to start from scratch and conduct a process supported by proper public participation. Sanral then appealed against the judgment.

On Thursday, the Supreme Court of Appeal in Bloemfontein dismissed the appeal with costs, including those of two counsel.

The city had argued in the appeal court that the process undertaken by Sanral to declare portions of the N1 and N2 as toll roads was improper and unlawful, as were some of the decisions preceding the declaration.

Cape Town contends that the minister of transport must approve the declaration of a toll road, but that the minister at the time had admitted that he did not consider the merits of declaring a toll road.

Further, in terms of the Sanral Act, only the Sanral board could take the decision to declare a toll road. But the city argues that the board never made such a decision and was never given the information to enable it to make such a resolution.

Another major issue the city raised was that Sanral had proposed a concession contract that guaranteed payment of R62bn – a cost that would have to be covered by the users of these roads through toll fees, which will be more than three times higher (344%) than the toll fees paid by the users of the Gauteng Freeway Improvement Project.

Brett Herron, Cape Town’s mayoral committee member responsible for transport, said last month that even though it was within the national government’s mandate to determine how road infrastructure should be funded, the political decision makers and public entities such as Sanral were still obliged to follow due process and to act within the law.

"The city remains opposed to tolling as a funding mechanism for the upgrading of existing roads and we will take this fight to the country’s highest court if need be. We are, however, willing and eager to work with Sanral to find a solution for the infrastructural upgrades that may be required for the N1 and N2 freeways," Herron said at the time.

Sanral has argued that its board was aware of all aspects of the Western Cape Winelands toll project and that all decisions relating to it were taken lawfully and in accordance with the Sanral Act. The agency has also said tariffs for the proposed N1 and N2 Winelands toll roads have not been set.