E-toll review panel misunderstands the legitimacy of civil disobedience

At the outset, we reject the position taken by the panel that there is ‘no justification for civil disobedience’ and that ‘boycotting e-tolls sets unsustainable precedents and threatens democracy

eand social cohesion’. In fact, government's illegitimate actions are perhaps in general, and certainly in this situation, the greatest threat to democracy and the panel has ignored this point. Conscientious civil disobedience is morally justified and an absolutely necessary when Government ignores the will of the people on an unjust and irrational policy.

We are therefore perturbed at how the learned panel can conclude that there is no justification for civil disobedience, while also having found that e-tolling places an unfair socio-economic burden on the poorer working class citizens; that it perpetuates apartheid spatial inequalities; that the system is administratively cumbersome; and lacks public support due to a dismal public engagement process and other issues.

This essentially boils down to a puzzling contradiction by the Panel, which detracts from the overall credibility of the report. In fact, the various opposition entities and the civil disobedience campaign, is a reaction to a matter of Government policy which is regarded as being an unjust and irrational scheme. In fact, the Opposition to Urban Tolling Alliance (OUTA) believes that quite contrary to what the panel suggests, the widespread opposition to the e-toll matter has created social cohesion and advanced our democracy.

Moreover, while we applaud the panel for strongly espousing a human rights approach to assessing Socio-economic impact, the panel have been extremely selective in enunciating only certain human rights contained in the Bill of Rights. The report rightly affirms our rights to dignity, freedom of movement, environment and just administrative action, but nowhere in the entire report do we find any discussion on the fundamental human right that SANRAL has most blatantly and repeatedly violated in every major tolling project in South Africa – the right of access to information (clause 32).

Furthermore, the lack of transparency by this State Owned Institution, which is answerable to the people, has been astounding, as have their continuous cases and incidents of misleading information, which in turn has impacted on society’s growing distrust in SANRAL and the Department of Transport.

The panel’s report also states that “the success of … any public policy for that matter, requires the creation of mechanisms for the effective articulation of ‘people’s voice’ particularly at the implementation stage.” We agree with the panel in this regard, which is why we are puzzled with their continued support for the e-toll scheme as being an acceptable solution, even if only partially so in a hybrid funding scheme.

We further add that policy development requires the embracing of scrutiny by critics and other external experts, to challenge the submissions proposed by Government and their State Owned Entities. This is a matter which Government have spectacularly failed at in the case of the e-tolling decision, and is a matter which the Panel needed to highlight in no uncertain terms.

The panel does criticize SANRAL and the National Department of Transport for “ignoring the central importance of politics,”

However, more fundamental than that, has been SANRAL’s prioritisation of the commercial interests of construction consortia and the private sector contractors over the common good of society, which is highlighted by the panel. This is another matter that raises serious questions about SANRAL’s intentions and slow or minimal progress in bringing the colluding companies to book.

The Panel almost defends SANRAL by placing the excessive and collusive pricing behavior at the feet of the construction companies. However, there is a substantive argument which states that SANRAL are the experts in this space and should know very well what the cost of construction ought to have been. Yet they ‘allowed’ the situation of overcharging to take place under their noses and even defended the ‘high costs’ of the project prior to the collusion being exposed by the Competition Commission. We believe the panel has been remiss in not going deeper on this issue, and should probably have indicated the need for an independent commission of enquiry to expose what many deem as a gross waste of tax-payers funds.

Nevertheless OUTA does recognise that the Panel was purely advisory and did not have judicial powers to interrogate evidence presented or subpoena testimony.  Within the narrow scope of its terms of reference, the Panel has at least confirmed what OUTA asserted from the start; that e-tolling is purely a means of paying off a financial debt, rather than a sustainable long-term economic intervention. The freeway upgrade is just one of a number of interventions to address congestion in the region. But, it is one that has placed an onerous burden on people who can least afford to pay for the roads, whilst losing the support of the people who can.

The Panel’s report has proposed numerous solutions for finding the money from society, but it has fundamentally erred in two areas:

1. They have failed to conduct detailed assessment of the status quo, which had they done so, would have led them to a conclusion of the e-toll system's unworkability and it's failure. As a result, they have held onto a scheme which has proven to be unworkable.

2. While it is not their call to make, they have largely ignored a strong proposal for use of National Treasury funding (including the efficient fuel levy), which attracts zero administrative costs and inefficiencies, yet will distribute the cost more equitably and weighted to the tax base that can afford to pay for the social infrastructural upgrade. This was the overwhelmingly favoured solution presented by many respected entities during the Panel’s hearings.

OUTA’s detailed evaluation of the Panel’s report will be released early in February, however, in the meantime we urge Gauteng residents to assert their constitutional rights.  As Dr Mary Robinson, the former UN High Commissioner for human rights says; “Human rights do not belong to government. They belong to people.  It is by concerted citizen action, that human rights become meaningful.” Conscientious non-violent civil disobedience is an entirely legitimate and universally accepted form of concerted citizen action and Governments that disrespect this do so at their peril.