City goes to court to prevent tolling of N1 and N2 into Cape Town

On Friday 07 October 2011 the City of Cape Town filed an application for an interim interdict to prevent the South African Roads Agency Limited (SANRAL) taking further steps to convert the N1 and N2 highways into Cape Town into toll roads. The City has brought this application in the public interest because it believes that millions of people and businesses will be adversely affected financially by the proposed tolling, and the City will have to foot the bill for maintaining and upgrading municipal roads to accommodate the traffic that will divert off the national roads if they are tolled.

With regards to the procedural aspects, the City is of the view that key decisions made by SANRAL have been legally invalid. These include:

• granting of environmental authorisation for the project in terms of the Environment Conservation Act (ECA) of 1989 without considering the socio-economic impact of tolling
• the declaration of the N1 and N2 as toll roads by the Minister of Transport without giving the City and the public a hearing
• the declaration of a toll road, despite its likely unfairly discriminatory effects

The City has already declared a formal inter-governmental dispute with SANRAL. However the City has been compelled to launch urgent interdict proceedings against SANRAL for two very important reasons:

·         SANRAL's announcement that the Protea Parkways Consortium has been identified as the preferred bidder to be awarded the tender to begin the construction of the toll roads in early 2012, and

·         SANRAL's consistent refusal to consent to the City's request that it postpone the awarding of the tender.

SANRAL and the other respondents have until Tuesday 08 November 2011 to file their answering affidavits and the hearing is scheduled for Tuesday 06 December 2011.

The project will affect 105.8 km of the N1 from the Old Oak Interchange just west of the R300 interchange to Bot River; and 70.3 km of the N2 from the R300 interchange to Sandhills in the Hex River Valley.

The project would involve the construction of a second Huguenot tunnel as well as road widening, and the construction of many ramps and bridges as well as tolling infrastructure. SANRAL may construct conventional toll plazas, but seems more likely to opt for the electronic registration number recognition technology it proposes using in Gauteng.

The City has always maintained that that the Environmental Impact Assessment (EIA) process that resulted in the then Minister of Environmental Affairs, Marthinus van Schalkwyk, granting an environmental authorisation for the N1/N2 Winelands Toll Highway Project, was fundamentally flawed. The EIA process did not assess the socio-economic impacts of the tolling and this was not considered by Minster van Schalkwyk on the grounds that it would be dealt with by the Minister of Transport in the subsequent intent-to-toll process.

However, the Minister of Transport consented to SANRAL declaring the toll roads on the basis of a confidential report prepared by SANRAL - and which SANRAL has refused to release.

The City alleges that the report that SANRAL gave to the Minister of Transport:

• glossed over the negative impacts of the tolls
• was inadequate
• did not even include an important letter written by the then Executive Mayor Helen Zille, expressing the City's concerns about the project.

Consequently the City is seeking an interim interdict preventing SANRAL implementing the project until the inter-governmental dispute between the City and SANRAL has been completed and a court has decided whether or not to set aside the decisions of the former Ministers of Environment and Transport which gave the green light for the tolling of the N1 and N2.

The City intends instituting further legal proceedings to review and set aside those decisions on a number of grounds, including on the basis that the Ministers misconstrued their legal obligations and failed to contemplate relevant considerations.

The City has a long-standing policy against imposing tolls on roads within Cape Town because it believes that tolling is an inefficient and often unfair way of funding road upgrades. It may also have a negative impact on the development of an integrated public transport system.

The City believes that tolling the N1 and N2 will have a discriminatory impact, particularly on low income communities living along the N1 and N2 who will have to spend a disproportionate amount of their income on paying tolls while receiving few benefits.

In support of its application the City has filed a number of reports from experts in socio-economic impact assessment and road transport who confirm that tolling is an inappropriate method of financing the road upgrades and that the decisions to authorise the toll road were based on out-dated reports that fail to take proper account of the negative impacts of tolling. For example the total nominal amount of the toll fees over the period for which the toll concession would be granted is conservatively estimated to be about 10 times the amount that would be spent on the maintenance and improvement of the roads during that period.

High toll fees would not only have a severe impact on commuters, but could also cripple many farmers who export their produce via Cape Town. For example, Professor Jonathan Bloom, a professor in Corporate Financial Management at the University of Stellenbosch, estimates that the proposed toll gate between De Doorns and Worcester could cost grape producers in the Breede Valley an additional R4 to R5 million per year and add 30 cents to the price of a carton of grapes.

Trucks using the N2 to transport fruit from the Theewaterskloof area may well have to pay R520.00 in toll fees for a round trip to Cape Town. This is likely to lead to significant job losses in the agricultural sector.

The experts estimate that in order to accommodate the traffic that will divert off the national roads onto municipal roads, the City will have to spend hundreds of millions of rands on widening municipal roads and upgrading intersections while the annual cost of additional road maintenance due to diversionary traffic could easily top R100 million.

The City is conscious that any review application will be brought outside of the 180 day period provided for in the Promotion of Administrative Justice Act and that the City will have to show that it is in the interests of justice that this delay be condoned by the court. In this regard the City will ask the court to consider the following factors:

• The City did not wish to institute review proceedings and preferred to resolve the matter through co-operative governance mechanisms
•  SANRAL requested the City not to institute legal proceedings and assured the City that the concerns would be addressed
• There will be profound consequences if the N1 and N2 roads are tolled.
•  There is a very strong prima facie case that the environmental authorisation and the Transport Minister's approval were unlawful and are unconstitutional

Statement issued by Councillor Brett Herron, Mayoral Committee Member for Transport, Roads and Stormwater, City of Cape Town, October 9 2011

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