Wednesday 28 November hopefully marked the end of a long and much tougher challenge than we
initially envisaged, after setting out in March to put a legal halt to the eTolling of Gauteng’s Freeways
I say so feeling confident that we have put up an excellent challenge in court against SANRAL, Treasury and the Department of Transport’s respective legal teams this week. While there were many aspects about the eToll matter that are very wrong and are included in our legal challenge (being the high costs, inefficiency, lack of alternative transport and routes, enforcement, compliance, environmental matters and unworkability etc), our legal team felt it prudent to focus our energy in the review on the illegal nature of SANRAL’s shockingly poor public engagement process. Our arguments went deep into interpretation of the Promotion of Administrative Justice Act (PAJA), combined with the Constitution and how Section 27 of the Sanral Act needed to be taken in the context of these laws.
Our case has exposed how SANRAL largely ignored their legal duties to conduct full and proper public consultations on their plan to toll the GFIP, largely under the guise of a ticking ‘Soccer World Cup’ clock. The simple matter is, unless the authorities conduct themselves properly in the ‘public engagement space’, they run the risk of a backlash from citizens, which is precisely why these laws exist, the ignorance of which is being currently expressed by the public outrage and threats of civil disobedience. We have deemed SANRAL’s conduct as sufficiently unlawful and as such, their eToll plans need to be set aside and the process to be properly and legally re-engaged.
Over the past few months, when studying eToll project successes and failures around the world, we find a high correlation with society’s acceptance or rejection of these schemes being based on confidence and trust obtained through excellent public engagement on matters pertaining to reasonability of tariffs, alternative transport options, alternative routes, efficiency and good communication. Without these elements in place to bring society on board, tolling has (and will continue to) fail around the world, even in more disciplined first world environments. Every one of these elements was missing in the plan to toll the GFIP and even if the legal case rules in SANRAL’s favour, the current eTolling plan for Gauteng will be extremely difficult, if not impossible to implement. The truth be told, SANRAL is still unable implement eTolls – some 19 months after the first planned launch date of April 2011, despite their statement in the Constitutional Court in September 2012 that they will launch within two weeks of the interdict being set aside. There is a saying: “Laws are only as good as they are implementable and governable.” In this matter, both implementation and governance will be hurdles too high to jump. We sincerely trust the authorities will be able to acknowledge this sooner rather than later, whatever the legal outcome.
Win or lose in court, I’d like to acknowledge the dedication and tireless work of Marc Corcoran and Adrian d’Oliviera (Jnr Counsel) in getting us to where we are today. Pieter Conradie, Rebecca Thompson, Paul Pauwen, Alistair Franklin, Alfred Cockrel, Kelvin Buchannan and the skilful input of Adv Mike Maritz in the review hearings were all naturally very important and integral to the journey. It would be remiss of me not to also thank the members of SAVRALA, who provided the necessary and significant funding to get the case started, along with the RMI, QASA, SANCU, SATSA and AA, all of whom added immense weight to this cause, in conjunction with over 2300 individuals, families, small businesses and a few larger organisations who contributed to the funding of OUTA’s legal costs – a matter which is still not complete. We plead that business and the public continue to contribute to our legal costs at www.outa.co.za.
We will know the outcome in a few weeks and intend deal therewith and resultant decisions / actions by the respondents, at that time. What is however known, is that this challenge was sincere and meaningfully undertaken to protect our rights as citizens of South Africa.