OUTA lays charges of perjury against former SANRAL CEO Nazir Alli

The charges were laid at the Linden police station on Friday 16th December 2016 in an affidavit submitted by the Organisation Undoing Tax Abuse (OUTA) consultant John Clarke, prepared by OUTA’s legal department.

The charge arises out of the sworn statement made by Mr Alli in the dispute between the City of Cape Town and SANRAL over Mr Alli’s handling of the proposed tolling of national roads in the Western Cape.

Mr Alli had made a declaration in a sworn statement dated 2 October 2014, stating that the SANRAL board had passed a resolution in 2004 to declare sections of the N1 and N2 in the Western Cape as toll roads. However, Mr Alli could not produce minutes of the board meeting to prove that the any such resolution was taken prior to the 2008 gazetting of the roads as toll roads.

Effectively Mr Alli - who was negotiating a Public Private Partnership tolling concession deal with a construction consortium - had taken the responsibility upon himself to declare the roads as toll roads, in contravention of section 12 (2A) of the SANRAL Act. While Mr Alli is a supporter of the SANRAL Board, he does not have voting rights nor the required authority, and was obliged to obtain a formal board resolution and then authorisation by the Minister of Transport, before turning a national road into a commercial business opportunity.

The Minister of Transport (at the time Minister Jeff Radebe) signed off on the declaration without evidently applying his mind or being aware that the SANRAL Board had not exercised its fiduciary duty to pass a resolution. The Minister of Transport is the sole shareholder of SANRAL and appoints a board of directors who must govern the State Owned Entity in the public interest and in keeping with the values and principles of good governance, as specified in Section 195 of the Constitution.

The City of Cape Town applied to the high court for the declaration of the roads as toll roads to be set aside when it became clear that the toll tariffs would be exorbitant – two to three times higher than the Gauteng e-toll tariffs – potentially sparking a massive boycott similar to that seen in Gauteng.

In September 2015 the Cape High Court found Mr Alli’s assertion that the board had passed the requisite resolution to “be so far-fetched as to be untenable” and accordingly granted the City of Cape Town’s application for the toll road declaration to be set aside.

SANRAL’s appeal to the Supreme Court left Justice Navsa and four other judges equally unimpressed, finding Mr Alli’s attempts to remedy the situation ten years later by seeking a round robin resolution from the 2014 board “deliberately obfuscatory” and “disorder made worse than before. Confusion worse confounded”.

OUTA Chair Wayne Duvenage believed the perjury charge would stand up in a criminal court and if Mr Alli is convicted, will hopefully serve to deter any CEO of a State Owned or Public Entity from behaving as a law unto themselves in the future. “There is a worrying trend of State Owned Institutions where senior executives flout the law so as to not act in the best interest of South Africa as a whole. OUTA is committed to arrest this behaviour and will continue to root out the rot and pursue these matters in our courts, where and as required.”

“Given that no less than seven judges have now examined the sworn statements made by Mr Alli and have unanimously found that Mr Alli had effectively acted unilaterally and without authority to declare the Cape highways as toll roads, we have prima facie evidence that Mr Alli committed perjury. It is very important for the sake of the Rule of Law, social stability and the legitimacy of the State that the whole truth and nothing but the truth is laid before the court. Leaders of organs of state set the ‘tone at the top’, and therefore their statements have to be beyond doubt.” said Duvenage.

John Clarke was mandated by OUTA to lay the charges and put himself forward as a witness because he has been closely monitoring Mr Alli’s leadership of SANRAL since 2004, mainly with respect to OUTA’s e-toll challenge in Gauteng and on SANRAL’s plans to shorten the N2 route through the Wild Coast.

John Clarke says that “After more than 30 years of social work experience I have learned from counselling people who have come to grief that invariably their troubles have come about because of having taken short cuts in life. Mr Alli clearly took a short cut with the Cape Winelands tolling decisions. I believe he did the same with the original N2 Wild Coast Toll Road decision in 2004, and with the Gauteng e-tolling decision in 2006. Road infrastructure is built to last for generations into the future. It is therefore imperative that all decisions both technical, administrative and financial are made with the utmost care, diligence and above all honesty.”

Clarke says that the ramifications of this particular perjury allegation go beyond matters of road building and financing decision: it is about buttressing the Rule of Law.