OUTA’s response to the SCA judgement

After the North Gauteng High Court in December 2012 unexpectedly;

• decided that the public consultation conducted by SANRAL before GFIP commenced in 2008 had been adequate, which it clearly hadn’t; and

• failed to consider and decide the further reasons put forward in the review why e-tolling was unlawful at all.

The Opposition to Urban Tolling Alliance (OUTA) and its co-applicants appealed to the Supreme Court of Appeal.

OUTA and its co-applicants did so firm in its belief (shared by many) that the introduction and planned implementation of e-tolling by SANRAL was unlawful and unconstitutional, amongst other reasons, because:

• firstly, SANRAL had clearly failed to conduct a meaningful public participation process before it decided to declare Gauteng’s freeways toll roads. The three million or so supporters of Gauteng’s road using public were not properly informed of SANRAL’s plans nor given the opportunity to participate in the decision at all, as is required by the SANRAL Act;

• secondly, the Minister of Transport failed to properly consider the exorbitant costs of e-tolling that would be borne by the public when approving SANRAL’s plans to declare Gauteng’s freeways toll roads. The very person who had to safe-guard the public from an overly expensive scheme did not properly consider the expense of the collection process;

• thirdly, the enforcement of e-tolling would be practically impossible because of the sheer numbers of users of the GFIP. Gauteng’s courts and law enforcement system would be unable to deal with thousands of expected defaulters per month.

OUTA and its co-appellants also appealed because they believed that the levying and collection of e-toll is a scheme that had not been introduced according to the law, would violate the constitutional right of road users not to be arbitrarily deprived of property.

Astoundingly, the SCA in its judgment responded by refusing to consider and decide on the unlawfulness of e-tolling. Instead, the SCA decided the appeal largely on the technical basis that there has been too long a delay in challenging e-tolling. The property challenge was also dealt with on the basis that it was defeated by delay. In short, the SCA has said it is too late, and has closed its eyes to the fact that e-tolling may be unlawful.

Before commenting briefly on the finding of the SCA concerning delay, it is necessary to clarify what the technical approach adopted by the SCA in its judgment means.

It means, firstly, that OUTA, the appellants and road users still have no clarity on the lawfulness of e-tolling. The merits have not been decided on and in this regard the SCA said that it was, and I quote, “barred from embarking on the merits”. Here I must pause to state that the statement issued by SANRAL and Government yesterday that the SCA judgment affirmed that SANRAL consulted adequately is clearly inaccurate. You only have to ask almost any road user in Gauteng, who will tell you this was not the case.

It means, secondly, and very importantly for every supporter of the public, that it remains open to any citizen to lawfully decide not to pay e-tolls and defend his/her prosecution for failure to pay e-tolls on the basis that the toll declarations and the approval by the Minister of Transport of e-tolling was unlawful. This is called a collateral challenge in which the delay matter - which is a legal obstacle in a review - is totally irrelevant.

This, we must stress, is a very positive implication of the SCA judgement for the rights of individuals.

Despite this, it must nevertheless be said that we bitterly disappointed that the SCA adopted to take the course it did. OUTA and its co-appellants have looked to the Courts to protect their supporters and the road using public from the unlawful action of SANRAL and Government, and the Courts have thus far failed them.

This disappointment and the effect of the failure of the Courts to come to the assistance of the road using public, is and will be felt most acutely by persons with low income and by the supporters of the QuadPara Association of SA (QASA) who only receive a R1200 grant to live on and who cannot be exempted from e-tolls because they rely on the generosity others to transport them, who will in turn become reluctant to transport the physically disabled.

In regard to delay, it is a startling feature of the SCA judgment, whereby OUTA is advised that a solid ground for an appeal exists, in that considering whether to condone the delay, the SCA totally ignored the fact that QASA instituted proceedings in its own right on behalf of its supporters and it was undisputed that QASA only came to know about e-tolling in February 2011.

The SCA was wrong in not granting QASA condonation on the delay and then dealing with the merits. How could supporters of QASA be blamed for the delay between SANRAL and Government’s decision to e-toll and the launch of proceedings, when they were unaware of e-tolling?

By the same token, how could the public be blamed for the same delay when they likewise were prevented from knowing about SANRAL and Government’s decision to e-toll in 2008, following the failure of SANRAL to properly inform the public during the formal public participation process? The public at large only came to know about e-tolling after the World Cup in late 2010 with the emergence of e-toll gantries. The SCA failed to confront this fact. Its finding by the SCA that the public knew or should have known about e-tolling already “two or three years” before February 2011, being its starting point in finding there was an inexcusable delay in bringing proceedings, is vague, unsupported and provides further grounds for appeal. Indeed, why is it that we find ourselves today in a situation where there is an overwhelming rejection by the public, if indeed society was properly and meaningfully engaged with?

But what does the SCA judgment and all of the above mean for OUTA?

OUTA has a couple of avenues open to it.

As regards to further litigation, chief among these is that OUTA could take this matter to the Constitutional Court to make a decisive ruling on the unlawfulness of e-tolling. OUTA is advised that it has solid grounds for this appeal. But OUTA will here be confronted by a shortage of funds. OUTA has been transparent with the public in this regard at all times, and will remain so. Despite the overwhelming contributions made by society to raise 90% of OUTA’s required funds, we remain short of R1.5 million, and we have been advised that a further R1.5 million will be required to prosecute the appeal. If OUTA does not raise such funds, it will be unable to proceed with the appeal.

OUTA could, alternatively, cease to continue with further litigation and allow its case thus far, to provide the grounds for a collateral challenge by one of its supporters or, indeed any motorist, who is prosecuted for non-payment of e-tolls and furthermore, it continue to support the public is its opposition to SANRAL and the Government’s unlawful e-tolling scheme, outside of the courts.

OUTA must now carefully consider its options and determine its next course of action. In this regard, the OUTA board will meet early next week to consider its position and make decisions on the way forward.

In regard to legal costs, OUTA together with its co-applicants are, of course, very pleased at the SCA’s decision to set aside the costs order made by the North Gauteng High Court. The SCA clearly recognized that OUTA is indeed a broad based apolitical organization acting in the public interest and representing many road users within society. The decision follows and confirms the rule that applicants in public interest and constitutional litigation should not bear costs if unsuccessful, a rule so important for constitutional democracy and for the keeping in check of unlawful or unconstitutional Government action.

Before closing, and moving for a moment beyond the SCA judgment, it is necessary that OUTA highlight the following for all who may listen to or read this statement.

Firstly, OUTA and its co-applicants, are not standing isolated or in the minority in their campaign against e-tolling.

OUTA’s opposition to e-tolling as a funding mechanism for GFIP is shared by all political parties barring the ANC, substantial unions represented by COSATU, the SA Local Government Association, the ANC Youth League, and business represented by the Black Management Forum (BMF), Business Unity SA (BUSA) and the Johannesburg Chamber of Commerce & Industry (JCCI) to name but a few. OUTA’s stance has also recently been boosted loudly and clearly by the moral authority of numerous faith based organizations, not to mention the hundreds of thousands of citizens who have expressed their outrage at SANRAL and Government’s e-toll plan.

Government’s recent comments that belittle the extent of the opposition to e-tolling, reflects how out of touch Government is with the people on this issue. The groundswell of common opposition to e-tolling that stretches across political, social, economic and religious divides finds precedent only in the opposition to apartheid era policies and the social injustices caused by them. And yet SANRAL and Government refuses to listen in the face of such reaction by society to an unjust policy.

Secondly, the exorbitant costs of e-tolling must not be forgotten in the face of the SCA judgment that dwelt on delay. SANRAL and Government have spoken proudly about their comfort to pay 17,1% towards the e-toll collection costs, as if this in itself is an acceptable level, but to make matters worse, they conveniently disregard the Violation Processing Center of a further 8,7%, plus additional operating costs of 2,4%. By OUTAs account, the costs of e-toll collection and administration is over 30%. This has been recently corroborated by the public statements made by Kapsch TrafficCom in Europe, who claimed they will directly benefit to the extent of over €50m (or R670m) per annum from Gauteng’s e-tolls, a cost of which in itself equates to 24% of SANRAL’s R71bn figure of e-toll revenues generated over 24 years.

Thirdly, a unique and almost unprecedented feature about opposition to e-tolling has been the willingness for society to pay for the upgrades whilst insisting that the preferred funding model be as efficient as possible. The Court papers clearly highlight that SANRAL merely applied a cursory glance at the opportunity to use the Fuel Levy to fund the Gauteng upgrades. Indeed, in response to a parliamentary question by the Democratic Alliance in May this year, Minister Martins revealed that the fuel levy was not considered at all by the government to pay for the Gauteng Freeway Improvement Project (GFIP), when the decision was taken in 2008.

OUTA, like millions of other citizens, remain unconvinced by both SANRAL and Governments relentless objection to the consideration of a Fuel Levy, as a funding mechanism, which already is a policy tool available to Government for road infrastructure funding.  Recent media comments by SANRAL and Government to try undermine the Fuel Levy option merely highlights their narrow train of thought and unwillingness to objectively engage on this highly efficient and equitable user pay funding option. To suggest that we seek to fund the entire GFIP project in one year from the fuel levies collected is simply ludicrous.

Furthermore, it is important to note that e-tolling is in fact an ‘owner pays’ rather than a ‘user pay’ system, which gives rise to numerous administrative challenges and onerous time consuming implications to the road user and vehicle owners alike.

We wish to take this opportunity to thank the thousands of individuals and organisations who have financially supported OUTA on this legal journey. The response has been remarkable. OUTA’s thousands of supporters can take comfort that much has been achieved and that this effort has not been in vain. OUTA’s actions have exposed many real issues and concerns related to this irrational plan to date but, it may now be up to society itself to choose whether e-tolling will survive or not.

Gauteng’s highways like many other highways around the country are South Africa’s highways and all need either upgrades or maintenance and as such, society in general must contribute through the most equitable process, toward our much needed infrastructural upgrades. Indeed, the Presidential Commission on the Review of State Owned entities recently recommended that ‘social infrastructure, including roads, should rely less on user pays mechanisms and more on general taxation’.

SANRAL have, however, given notice of its intention to try and implement e-tolls before the end of this year and further litigation at the present time is unlikely to delay their decision to forge ahead. It is now up to other civic organizations, political parties, unions and individual citizens to lobby their ANC representatives who will be seeking re-election next year, for e-tolls to be suspended and a more equitable and efficient funding alternative be proposed, such as the the Fuel Levy or direct transfers from the fiscus.

SANRAL’s e-toll system requires not mere compliance, but a general commitment from society for its success. Instead, SANRAL is assuming it will successfully police and enforce compliance rather than inspiring cooperation and commitment to their plan, which their current exorbitant advertising campaign fails to achieve, purely because they have lost the trust of the people. Given this growing negative sentiment by society toward the planned e-toll process, the system will become fundamentally unsustainable and fraught with unintended consequences. SANRAL’s Achilles heel might well prove to be their blind obsession to force the implementation of e-tolls against the will of the people.