Two judgments in the same court but with two different results. Why? In both cases, OUTA and the City of Cape Town had to apply for condonation for the late filing of their applications. The City of Cape Town was successful in its condonation application whereas OUTA did not succeed despite the finding, in both cases, that the delay in bringing the court cases was unreasonable.
The Supreme Court of Appeal considered the interest of justice requirement in both the City of Cape Town and OUTA matters when it exercised its discretion as to whether it should grant condonation for the late filing of the applications. It found that it was in the interests of justice to condone the late application by the City of Cape Town but previously found - in the OUTA case - that it was not in the interests of justice to condone OUTA’s late filing. Why?
The circumstances of the Cape Town case were different to those in the OUTA case. The road works have not commenced in Cape Town and the amount (already spent) of approximately R136 million is relatively small in comparison to the huge costs of the entire SANRAL project in Gauteng worth R22 billion. In the OUTA case the upgrades of the highways had already been completed and were due to be paid for by the time OUTA launched the application to review and interdict the implementation of the e-toll system. Without e-tolling, SANRAL’s R22 billion debt, along with interest which was “running at an alarming rate”, would remain unpaid. The Supreme Court of Appeal found that the five-year delay in bringing the review application was unreasonable and that it was contrary to public interest to attempt to “undo history”. The Supreme Court of Appeal’s Judge Brand said “the clock cannot be turned back to when the toll roads were declared, and I think it would be contrary to the interests of justice to attempt to do so”.
If SANRAL starts the process afresh by implementing e-tolling in Cape Town and getting it right the second time, Gautengers may find some (cold) comfort in the fact that Capetonians may eventually also have to “cough up”.