OUTA and temporary confidentiality agreements

For the sake of clarity the Opposition to Urban Tolling Alliance (OUTA) wish to explain that this matter certainly is not a case of OUTA “doing a deal with the enemy” but rather a case of acting in the best interests to protect the judicial review dates.

In the court papers and affidavits being filed for the review, the respondents (SANRAL and Treasury) have often made reference to the ETC contract, which neither OUTA nor the public had seen. Obviously, it is imperative that we needed to gain sight of the ETC contract, in order to counter the claims and arguments made by SANRAL.

At first, SANRAL indicated that OUTA had no need to see these documents and would not make them available to OUTA’s legal team. OUTA then had to threaten the respondents with having to go to court to gain access to the contracts, especially in light of the fact that when documents are referred to in court papers, the party is obliged to make these available to the other party. A legal wrangle was about to commence so as to gain access to these documents, which would have delayed the full judicial review in the high court, set for 26 November 2012.

The confidential agreement relating to the document is only valid until the hearing of the review application, which will commence on 26 November 2012. The letter from Werksman’s (SANRALS attorneys) dated 26 September 2012 and which forms the basis of the confidentiality agreement said the following:

”3.2.1.  The documentation tendered (to OUTA) for inspection will be maintained confidential by your clients (OUTA) and will not be disseminated in any form whatsoever to a third party. An appropriate order in this regard will be sought at the hearing of the review application”.

This means that SANRAL will have to bring an application to court prior to 26 November 2012, for the documents to remain confidential and not made available to third parties.  Such an application will be deposed by OUTA and other applicants, including the media, who also have an interest in these documents.

SANRAL’s legal team then offered to make these contracts available to OUTA’s legal team, on the basis that these remain confidential, as indicated above. Under the advice of our attorney’s and to ensure that legal papers are filed on time to retain the full judicial review date of 26th November, OUTA agreed keep the contracts confidential. “By doing so, this does not imply that we are making any clandestine deals with SANRAL” says Wayne Duvenage, the Chairperson of OUTA. “The information has also enabled our transport economist to verify our concerns that e-tolling is a waste of tax payers money.”

OUTA feels strong about this lack of transparency by SANRAL and will continue to call for the government and the court to make these and all contracts related to e-tolling available to the public, after all, it is the public and business who are expected to pay the tolls. If there is nothing to hide, set the information free. OUTA also remains confident of its legal challenge maintaining that e-tolling is unjustified, inefficient, costly and an unreasonable burden for the Gauteng road user and needs to be set aside for more efficient and reasonable funding mechanism to pay for the Gauteng Freeway upgrade.