Minister plays power and forsakes authority
At the very least we were hoping that SANRAL and the Department of Transport (DoT) would acknowledge that they had erred in their assumptions, their failed public engagement program, and maybe even admit to exaggerating their claims of the number of e-tags in use.
Instead it appears that Minister Peters is using the opportunity afforded by the Gauteng e-Toll Advisory Panel to go on the offensive and accuse the e-toll critics of spreading lies and half-truths. This appears as a new rattling of the legal adversarial sabre and is totally uncalled for, especially in the light of OUTA’s exposure of many misleading statements and fabrications by SANRAL executives on the e-Toll decision.
The Minister’s opening comments appear to be aimed at slapping down the Gauteng Provincial Government, despite the fact that Premier Makhura has shown admirable leadership in doing what SANRAL and DoT ought to have done with all stakeholders in 2007 – i.e. engage meaningfully in a mature dialogue and consultation.
Her comments about the supposed lawfulness is a total distortion of the facts as can be read in the Supreme Court of Appeal’s judgment of September 2013. While judge Vorster in his November 2012 judgment found that the late application could not be condoned, the SCA, upheld that while Judge Vorster was correct in finding that the late application could not be condoned, they amended his judgment in two important respects. Firstly the SCA found that, since that the late application had been dismissed, he was not authorised to make a finding on the substantive arguments over the lawfulness of the e-toll declaration. Secondly the punitive costs order against OUTA was rescinded.
“OUTA is firmly convinced that if and when criminal charges are laid against any individual for the non-payment of e-tolls, we will be able to prove that the tolling declaration was unlawful,” said John Clarke, OUTA's Spokesperson. “In addition to our findings, we are further convinced that the criminal court will acquit the first person charged for the same reasons that Mr Nicholaas Smit was acquitted for refusing to pay toll in 2006 at the Nkomazi Plaza in Mpumalanga - a failure to consult with stakeholders”.
Instead of accusing critics of showing disrespect for the law, Minister Peters ought to be asking Nazir Alli why he showed complete disregarded for Judge Mojapelo’s careful efforts to spell out the meaning of consultation in that judgment of 2006. Against that benchmark, SANRAL’s consultation process for the e-toll decision in 2007 and 2008 was farcical.
It is quite disturbing that the Minister Peters is now trying to force submission to what OUTA believes is an unlawful law. Open Road Tolling systems hinge entirely on voluntary public cooperation and any attempt by authorities to force cooperation of an unlawful system is going to be resisted.
“We have repeatedly argued the unworkability of e-tolls and following a year of operation, all evidence of the current fiasco has proved us correct. Judging by the Minister’s input provided on Tuesday, OUTA now calls on the public to once again donate to their Rule of Law campaign, so that we can prepare to mount a defense, if and when the NPA commences prosecution for the non-payment of tolls,” says Wayne Duvenage, the Chairperson of OUTA.
OUTA is however grateful for the information provided by the DoT in their presentation to the panel, which clearly shows they have not grasped the issue at hand on the e-toll matter. They can try to force the people to submit, but they can’t force them to co-operate. Should the authorities ever attempt to do so, they must be prepared for the consequences of their actions. Furthermore, one year on and with less than 40% compliance, their idea of a user pays system has clearly failed. If the SANRAL and the Minister can’t understand that, there is nothing more to do except watch the system’s losses increase further.