Is four years late too late? OUTA & Others vs SANRAL & Others

Briefly summarised, the applicants sought an urgent court order to interdict and restrain the first, second and third respondents from implementing the e-toll system that was scheduled to be rolled out at midnight on 30 April, 2012, pending the outcome of an application to review and set aside the decision of the Minister of Transport to fund the infamous Gauteng Freeway Improvement Project (GFIP) by means of electronic toll collection.

The urgent interdict sought by the applicants was granted by Judge Prinsloo on 28 April, 2012. The respondents have sought leave to appeal directly to the Constitutional Court and the application for leave to appeal was heard on 15 August, 2012.

A lack of urgency

Prior to argument on the interdict application itself, Judge Prinsloo was called on by the respondents to rule on whether or not the application should be dismissed due to a lack of urgency. The respondents based their argument regarding urgency on the proposition that an applicant may not approach a court for urgent relief in circumstances where the applicant has created its own urgency. The respondents relied on the fact that the declaration of the various affected highways as toll roads took place in 2007 - some four years prior to the date when the applicants launched their application for an urgent interdict.

Having considered numerous factors, such as the uncertainty created by SANRAL and the Minister of Transport as a result of the implementation of e-tolling having been suspended on a number of occasions and the fact that the roll out date of 30 April, 2012, was looming, the Court found that the application was urgent and that the urgency was not self-created.

Arguments presented for the applicants and the respondents on urgency were very strong.

Government notices

It is important for clients to take heed of industry-specific Government Notices so as not to be caught unaware should such notices threaten to adversely affect clients in years to come. It is equally important for clients to interact with the government in relation to industry-specific notices and draft legislation where the opportunity presents itself and to demand the opportunity to be heard where it does not.

Conversely, clients should also bear this case in mind if faced with similar difficulties in relation to delays in launching proceedings. In this regard, Oudekraal Estates (Pty) Ltd vs City of Cape Town & Others 2004 (6) SA 222 (SCA) was relied on by the applicants and should be remembered by clients. In the Oudekraal case, a period of 50 years elapsed between the date when a decision was taken and the date when court proceedings were instituted. Four years late is not always too late.