E-toll conflict prevails: panel has misread legal status of e-tolls

While the Gauteng Provincial Government deserves applause for initiating a necessary process to transcend the impasse over e-tolls, unfortunately it is not sufficient.  In many respects the Panel’s report has shown just how wide the chasm is between SANRAL and the society, and surfaced a deep rooted conflict between SANRAL and the Gauteng Provincial Government, dating back to Mr Mbizima Shilowa’s days as Gauteng Premier. It was a critical failure of Cooperative Governance, as obliged by Chapter 3 of the Constitution. That unresolved conflict has now been projected and amplified on society at large, at massive cost to all stakeholders.

The six page letter to Premier Makhura explains and re-states OUTA’s position that the lawfulness of e-tolling remains an open question until a criminal court has heard the argument that the Opposition to Urban Tolling Alliance (OUTA) made in the judicial review process, but which was not decided because the SCA declined to condone the lateness of OUTA’s application, and therefore did not need to consider the merits.

However the very formation of the e-Toll Advisory Panel and its findings testify to the fact that SANRAL did not do what the law required at the outset.  The very fact of the ongoing public outcry is proof of that failure.

There is a saying in carpentry ‘measure twice, cut once’. SANRAL only did a rudimentary first ‘measurement’ by talking to the Gauteng Provincial Government, but it seems that as soon as they realised that their ideas about e-tolling as a financing mechanism did not tally with that of the Gauteng Government which wanted a solution to the traffic congestion and a way of integrating urban transport systems, SANRAL arrogantly went ahead, with just ‘eyeballed’ things, and relied on a ‘lawfare’ strategy as a substitute for public engagement.

OUTA explained to Premier Makhura that the retrospective process of consultation facilitated by the Gauteng Provincial Government could in no way be interpreted or construed as having made good the failure of SANRAL to consult, since neither SANRAL nor the National Department of Transport were participants at the Stakeholder engagement sessions on Friday, 6th February.

While we have total sympathy and agreement with the Gauteng Government’s desire to take back our freeways and while we agree that our provincial destiny must be decided provincially as a matter of principle, the fact that SANRAL and the National Department of Transport have usurped that provincial sovereignty means that the e-toll conflict can only be resolved in the National sphere of government.

OUTA is now turning to Parliament and the Presidency as the next step in its Rule of Law campaign, to make sure the causes of the e-toll debacle are understood, so that Government learns its lessons and changes it profoundly undemocratic ways.

OUTA has no objection to its letter to Premier Makhura being made public, if the Premier is willing to do so.  Our fight is not with the Gauteng Provincial Government. It is with SANRAL, and because Premier Makhura has a constitutional obligation to cooperate with all organs of State, we are hoping that he will be able to put our concerns to SANRAL, since Mr Alli, his Board and the SANRAL executive have apparently adopted a strict policy of no engagement with its critics.