Johannesburg — The costs of collection for e-tolling should not have been examined without considering the cost of the entire project, the Constitutional Court heard on Wednesday.
David Unterhalter SC, for the SA National Roads Agency Limited (Sanral), told the court the interdict was granted based on the costs of a fraction of the project, and not the entire thing.
"You cannot take a general policy framework and allow it to [be] subordinated to a single economic ratio," he said.
"It is impossible to fairly assess the costs for collection against all the other costs of the project."
He said all the different funding models had been examined, and he quoted various reports that found e-tolling to be the most "desirable" one.
It was found that a fuel-levy would not be able to guarantee a steady flow of money into the project.
Unterhalter said the rate of non-compliance was not a proper reason for a review of the project.
"There will be some measure of deviance... [but] it is a criminal offence to use a road and not pay for it," he said.
"This is not a proper ground for attacking [the e-toll system]... Ask if this is a system that is lawful -- and it is," he said.
Unterhalter said there were measures to manage deviance, and those who did not comply would face criminal sanctions. However, if people argued that they did not use the road, they could have a defence.
He said it was not necessary to prosecute every single person, but to merely make an example to encourage compliance.
He admitted that there were mistakes and faults, but the system was ready to begin for income to be generated.
He also questioned why the Opposition to Urban Tolling Alliance (Outa) had not make its submissions in 2008 when the project was being finalised. He called Outa's case "palpably weak".
"We submit that the delay is a fundamental obstacle," he said.
Unterhalter argued that the high court had not shown restraint in its judgment, and that there was a "threshold" that needed to be crossed before a court could intervene on a policy matter.
Deputy Chief Justice Dikgang Moseneke said courts needed to tread carefully on policy matters, but that nothing was beyond review since it was a constitutional right.