The Transport Laws and Related Matters Amendment Act has not made vital and substantial changes to provinces, the Western Cape High Court heard on Wednesday.
“The incremental utility of this amendment is extremely small,” said David Unterhalter, for the SA National Roads Agency Limited (Sanral).
He said the Gauteng Freeway Improvement Project and “a blunter system” of e-tolling could still have been implemented.
“It would have been entirely possible had the amendments not taken place.”
He was referring to amendments made to the Sanral and National Roads Act, which President Jacob Zuma signed into law in September last year.
The amendments allowed for the collection of electronically recorded tolls and the implementation of the electronic toll-collection system.
The Democratic Alliance took Zuma, Sanral, and four others to court to have the amendment bill declared unconstitutional and invalid because it had not been passed through Parliament according to what it deemed to be proper procedure, which would be with input from the provinces.
The bill was tagged as a section 75 bill — an ordinary bill not affecting provinces — rather than a section 76 bill, which does affect provinces.
Unterhalter argued that the amendments would not pass the test of falling within a functional area of concurrent national and provincial legislative competence, nor the test of introducing a substantial effect.
As an example of the second test, he referred to an amendment regarding presumptions to be made regarding tolling.
The amendment allowed Sanral to presume that an owner of a vehicle was liable to pay a toll in the absence of evidence to the contrary when demanding payment, or prosecuting for failure of payment.
The amendment also allowed for electronic evidence, such as an e-tag, to be presumed accurate and used to prove an alleged contravention.
Unterhalter said although the amendment made it easier to collect toll monies, liability was still in place before that.
Judge Owen Rogers said he did not doubt that the presumption made it much easier for Sanral to do its job and that without it, many might default on payment.
Unterhalter said one could not test a system based on how many people might default.
“There seems to be widespread resistance… it’s something that road users resent,” replied Rogers.
The lawyer was adamant the DA had failed to prove that the whole tolling system would be inoperable without the presumptions.
The DA has said that should the application be successful, it would have no problem in principle with suspending a declaration of invalidity for up to 18 months to permit Parliament to pass the amendment bill anew.
It would ask for a moratorium on prosecutions of any crimes that rely on presumptions in this period.
Should the amendment bill not be re-enacted within the suspension period, the DA believed the declaration of invalidity should take effect and be fully retrospective.
This meant Sanral would be obliged to repay all tolls paid in relation to the amendment bill.
Convictions based on the amendment bill should then also be set aside.