Sanral court bid another waste

SANRAL has been shot down again and, as usual, the taxpayer carries the litigation costs.

So how much are the costs we are talking about? Try R20 million and more! The latest Supreme Court of Appeal decision (Sanral v City of Cape Town [2016] ZASCA 122 ) against Sanral’s bid to introduce toll roads in and around Cape Town ought to alert us as to, if this wastage had not taken place, how many:

Teachers would be trained and employed?

Doctors would be employed in state institutions?

Food subsidies government could finance? Houses could be built? Students would be financed. Job-creating enterprises it could benefit?

In brief, the SCA dismissed an appeal by Sanral. Period.

The Western Cape Court earlier had reviewed and set aside: (a) an application by Sanral to the Minister of Transport (the minister) to approve the declaration of a number of toll roads; and (b) the subsequent decision by the minister to approve that declaration. Both lacked legality.

The main issue before the SCA was (i) whether the decisions by the minister and the Sanral board relating to the declaration of a number of toll roads were lawful; and (ii) whether Sanral should be interdicted from entering into a proposed concession contract relating to the contemplated toll roads.

The case concerned the N1N2 Winelands Toll Highway Project, and the legality of the process followed in declaring certain national roads as toll roads.

The SCA explained that it was within the prerogative of the legislative and executive arms of government to formulate and implement policy on how to embark on, and finance, public projects, including national highways. It would be in breach of the separation of powers for the court to rule on whether the agency should embark on the project in question, and whether tolling was an appropriate means of financing it.

Nevertheless, the court emphasised that it could and must ensure that the organs of state tasked with making these important decisions had acted in accordance with the principle of legality and had complied with the statutory prescripts regulating their activities.

The SCA found that Sanral and the minister had “acted unlawfully in purporting to have the roads declared as toll roads” in terms of The South African National Roads Agency Limited and National Roads Act 7 of 1998 (the Act).

For a road to be lawfully declared a toll road, the act required Sanral to apply to the minister to have the road declared a toll road, and the minister had to approve that application.

On the evidence, however, it appeared Sanral’s board of directors had never held a meeting to consider the matter, and had never formally approved the tolling of the roads. This was held to be a fundamental and egregious flaw. The project was one of national importance.

The SCA considered that this required deliberation, and found this to be lacking. It held further that a board resolution adopted by a differently constituted board years after the fact could not lawfully “confirm” a decision that had never been taken. It accordingly upheld the portion of the cross-appeal directed at having this resolution set aside.

Concerning the minister’s decision to approve the declaration, the minister had considered his role to be primarily an oversight role. The SCA held that this was incorrect. The minister, in scrutinising the application for the declaration of a toll road, was exercising a control function as a member of the executive over an organ of state which was statutorily and politically accountable to him. He was required to bring an independent mind to bear. As the minister had misconstrued his powers and function when coming to the relevant decision, this decision too was unlawful and liable to be set aside.

Accordingly, the SCA held that the decisions by both Sanral and the Transport Minister were invalid.

However, the SCA refused to grant the city’s further request that Sanral be interdicted from entering into a proposed concession contract regarding the toll roads. The SCA held that because there was no certainty regarding whether the roads would be tolled at all, and if they were, the details of such tolling, it would be premature to grant such an interdict. SABER A JAZBHAY

Durban