The Opposition to Urban Tolling Alliance notes with alarm Sanral’s current ambivalence, ambiguity and prevarication with respect to the recovery of illegal profits made by colluding road construction companies on the GFIP and other road construction and maintenance contracts.
OUTA hoped it would find some common ground with Sanral upon which we could stand together to address an extremely difficult problem. The problem is relatively easy to define, and has been largely done so for Sanral by the Competitions Tribunal, but the solution needs a strong united front and determination to get to the bottom of what happened, before time runs out and rules of prescription apply.
Six weeks ago Sanral was applauded for its strong statements by commentators and columnists, notably Peter Bruce http://www.bdlive.co.za/opinion/columnists/2015/01/30/thick-end-of-the-wedge-collusion-at-long-last-a-client-stands-up who commended Sanral for standing up and showing iron resolve. Media reports quote Vusi Mona stating that besides pursing a civil suit criminal charges had been laid with the Hawks. This was followed by Sanral Risk Officer Alice Matthews making a strong statement of principal. “For Sanral, it is absolutely vital that we maintain our credibility as a custodian of the money from taxpayers and corporate investors,” she wrote. “Sanral’s decision to pursue action against construction companies found guilty of collusion – which is a form of corruption – is proof of the agency’s commitment to good corporate governance. We have an obligation to recover the money on behalf of citizens.”
However recent reports suggest that Sanral’s apparent feet of iron on this issue, seem to have become mixed with clay. Certainly the length of time this has taken to have the charges laid, is unacceptabley overdue.
Citing the matter as “sub-judice” by Sanral spokesperson Vusi Mona is now declining to respond to queries from the media about the mixed signals and apparently contradictory statements emanating from Alice Matthews, Sanral’s risk officer, and himself. He says Sanral is “still considering” legal action against the twelve construction companies. However none of the colluding construction companies have been criminally charged or served with papers.
If Sanral hopes to regain legitimacy and credibility, now is not the time to try and hide behind the jub-judice rule. It only applies if there is a substantial risk of serious prejudice being created by a media report when proceedings are active. Proceedings only become active when there is a charge levelled, an issue of a warrant of arrest, or a summons. So far, we have heard nothing but threats of criminal prosecution and sabre rattling. Sanral has a much better chance of making criminal charges stick to those who colluded to escalate the price of the GFIP, than to prosecute motorists who are refusing to pay their e-tolls. By failing to go after the construction cartels it is giving those who wont pay e-tolls even more reason not to do so.
Moreover, let us not lose sight of the irony that one of the colluding construction companies is Basil Read Construction. It so happens that Basil Read is the lead member of the Protea Parkway Consortium (PPC), which is Sanral’s preferred bidder for the N1/N2 Winelands Toll Scheme. Basil Read has already been fined by the Competitions Tribunal for colluding with other offenders for Sanral tenders. This begs the question; why is Sanral so defensive about keeping financial information from the PPC out of the public domain?
OUTA has also noted that next week the Supreme Court of Appeal will hear argument from the City of Cape Town, concerning the dispute of the lawfulness of the N1/N2 Winelands Toll Highway declaration, and the naming of PPC as the preferred bid consortium. Sanral’s lawyers will face a formidable challenge because the following civil society organisations have joined together and been granted admission as amici curiae (friends of the court): The Legal Resources Centre, Right2Know Campaign, Section 16, The Open Democracy Advice Centre, the Mail and Guardian Centre for Investigative Journalism, The South African National Editors’ Forum, Section 27, The Socio-Economic Rights Institute, The South African History Archives, The Democratic Governance and Rights Unit, and Corruption Watch.
Their legal counsel will argue that the public interest and the constitutional right of access to information trumps the commercial interests of the corporate sector.