OUTA requires funds for its “Rule of Law” campaign
Since the recent announcement by Premier David Makhura to form a panel to review the impact of e-tolling on the province, the Opposition to Urban Tolling Alliance (OUTA) has made a public request to SANRAL, to state whether or not they intend to still pursue the prosecution and criminalisation of people who have not paid their e-toll bills.
OUTA believes that for SANRAL to do so will only serve to aggravate the implicit conflict between Government and the people that prevails over e-tolling.
Chapter 3 of the Constitution states “all spheres of government and all organs of state within each sphere must …cooperate with each other in mutual trust and good faith”. We cannot have one section of government opening up dialogue while another section is shutting it down by using the force of law to coerce compliance. Whilst the Premier’s review panel does its work, SANRAL needs to show good faith and participate in the process, in the hope that a way out of the impasse can be found.
The details of Premier Makhura’s Review Panel will be announced later today. In anticipation of a constructive way forward OUTA has urged SANRAL to be prudent and wise and halt any plans or intentions to commence its intended prosecution strategy because it could render the Premier’s review process meaningless and spark further confusion and may provoke additional resistance and an unnecessary backlash from society.
OUTA’s plea has been met by outright rejection by SANRAL. Furthemore, recent comments reported in media by the ETC CEO, Mr Jamie Surkont and SANRAL CFO, Inge Mulder, both indicate that SANRAL is intent on an imminent pursuit of prosecutions through the National Prosecuting Authority.
In light of the above, OUTA has no option but to stick to our commitment to assist those who believe e-tolling to be unlawful and thereby challenge the lawfulness of SANRAL’s criminalisation strategy against those who refuse to pay their e-toll bills. OUTA has gathered a significant volume of information that testifies to wrong-doing by SANRAL in the course of forcing their plans to toll the region’s freeway upgrade. OUTA will now launch its challenge by means of its “Rule of Law” campaign, the content of which is provided herein.
It is self evident that the people of Gauteng shall need to fund the campaign by means of cash donations, as it has in the past. OUTA has always relied on donations from business and the public to conduct its work and fund its legal challenges. OUTA does not have the funds to proceed with this campaign and once again, we turn to the freeway users and request urgent donations to help us complete the battle for the rights of ordinary people and road users to be upheld. Besides core operational funding requirements, we need to raise an estimated R3 to R4 million to cover the expected legal costs, if matters transpire as we currently envisage they will. Without these funds, we cannot cover the legal costs for the best lawyers suited to defend this matter. We urge citizens to take five minutes of their time and contribute, no matter how much, on our website.
If indeed this matter does not go though the legal hurdles we expect, or if the e-toll issue is halted and the future expected legal costs are not incurred, OUTA will use these funds to settle past outstanding debt and will transfer any surplus to support other civil society initiatives that are striving to uphold the rule of law. Please also note that the directors of OUTA do not receive any remuneration or fees for their work or efforts conducted in this campaign.
On a secondary note, we would like to inform the press that on the 15th of June, OUTA wrote to the Chairperson of SANRAL, Ms Tembakazi Mnyaka, requesting clarity on the SANRAL Board’s intentions to prosecute and seek compensation/payment from the collusive construction companies, for the overcharges relating to the GFIP. The approvals to proceed in this regard were indicated to SANRAL by the Competition Commission last year and to date, society has yet to be informed, in detail, of SANRAL’s plans in this regard. We express our disgust that SANRAL contemplates the prosecution of citizens for a grossly unjust e-toll scheme, whilst they fail to recoup the ill-gotten gains by business, a matter which indeed could have had a further implication on the irrationality of the entire e-toll decision.
The Content and reasoning of OUTA’s "Rule of Law" campaign is as follows:
1. If SANRAL and Government wants to toll, or e-toll, they must do so lawfully.
2. The Constitution guarantees the rule of law.
3. The Bill of Rights guarantees the right of every person to be governed in a manner that is lawful, reasonable and procedurally fair;
4. But, as OUTA came to discover through its own investigations and in the later litigation in 2012 and 2013, SANRAL and Government, did not comply with the law or the Constitution when they introduced Gauteng’s e-tolling scheme. The toll declarations underlying the e-tolling system in Gauteng are unlawful in that:
SANRAL did not conduct a proper public participation process as required by the SANRAL Act before tolling can be introduced. The public were not informed of what SANRAL’s plans were, how they would be affected, what it would cost them.
The Minister of Transport did not consider the exorbitant cost to be paid by the public of e-toll collection as set out in the application made by SANRAL to him for his approval;
Both SANRAL and the Minister of Transport did not properly consider more efficient and inexpensive alternative funding mechanisms;
The decision to approve the tolling of Gauteng’s freeways was unreasonable. E-tolling is a wasteful and unduly burdensome administrative process which has numerous flaws that make it impractical and almost impossible to enforce.
5. OUTA and its co-applicants have tried to have the toll declarations set aside before e-tolling started because OUTA believed they are unlawful on these and other grounds.
6. However, the Supreme Court of Appeal decided that it was too late to set the toll declarations aside. In doing so, the SCA rejected OUTA’s application on the technical basis of delay and held that the court was barred from deciding whether e-tolling is unlawful or not at that time.
7. OUTA announced its decision in September 2013 not to appeal the SCA decision, but to rather wait for the moment when the unlawfulness of e-tolling could not be avoided for technical reasons, namely, when e-tolling is enforced by SANRAL and the NPA in court against individuals.
8. That moment is upon us.
9. We have every reason to believe that SANRAL and the National Prosecuting Authority are on the brink of launching the first prosecutions of road users who have refused to pay e-toll.
10. OUTA has requested an undertaking from SANRAL and the NPA that prosecutions should not be launched in view of the announcement of a review of e-tolling by Gauteng’s Premier, and this undertaking has not been given.
This is the reason for OUTA’s launch of the “Rule of Law” campaign:
1. In this campaign, we want to assist individual citizens who are prosecuted and who share OUTA’s belief that e-tolling is unlawful in saying to SANRAL and to Government.
“If you want to govern us and if you want to toll us, you must do it lawfully.”
“Your decision to e-toll Gauteng’s freeways was not lawful. Furthermore, it was not reasonable and it did not respect the rights of the people of South Africa and in Gauteng to be informed of the decision and in a manner that would enable their participation therein.”
“By e-tolling you are crippling us. And now, by prosecuting us for not complying with a system that is actually unlawful, you are victimising us.
2. In this campaign we want to help individual citizens to hold SANRAL and Government to the rule of law and the Constitution.
3. In this campaign we also help the people of Gauteng, and South Africa, say to SANRAL and Government “Not again”.
4. “Not again” refers to the manner in which the e-tolling of the GFIP was slipped past the people of Gauteng by SANRAL, who were not given a meaningful opportunity to speak and participate in the decision that affects so many to such a great extent.
5. “Not again” refers to the decision by SANRAL and Government to impose what amounts to a new compulsory tax on its citizens without properly informing those citizens and giving them a proper opportunity to influence the decision, which was rightfully theirs to influence.
6. “Not again” refers to the decision by the Minister of Transport on behalf of Government to approve e-tolling without even considering the extent and exorbitance of the cost of toll collection to be paid by the citizens.
7. The "Rule of Law" campaign is not a civil disobedience campaign.
8. The purpose of the "Rule of Law" campaign is to help individual citizens resist the enforcement of an e-tolling system against them, one that they believe is unlawful.
9. The Supreme Court of Appeal refused to enquire into and decide whether the toll declarations, and therefore e-tolling, is lawful or not.
10. That enquiry must now take place in a test case when SANRAL and the NPA prosecute those individuals who refuse to pay e-tolls.
11. If the High Court, and possibly, the Constitutional Court decides in the test case that e-tolling is lawful, then the "Rule of Law" campaign and OUTA’s opposition to e-tolling GFIP Phase 1 will come to an end.
12. Until such time, OUTA will do what it can to support South Africa’s citizens and road users who have made up their own minds that what SANRAL and Government have done is unlawful, and thereby challenge SANRAL and Government, to uphold the Constitution and the rule of law.