Message from the Chairman
It has been an interesting two months since OUTA’s decision to entrench itself as a civil action movement for the long term. While we hoped that sanity would have prevailed and the e-toll scheme called off by now, it is clear that a lot of work still lies ahead to end the irrational and unjust e-toll scheme. At the same time, we have realised the need to tackle many other issues which have come to our attention, regarding Sanral’s behaviour, along with other general ‘tax abuse’ matters in South Africa today.
Our new broader stance and entrenched position for the long run, resulted in a renewed fund raising ‘membership’ drive to support OUTA’s team of expanding expertise, all of which is required to tackle the challenges and exciting work that lies ahead for us. However, our surefire priority is to remain focused the Gauteng e-toll matter, on which there have been a number of developments and action taken of late, most of which is listed here in this Digital magazine.
I would like to thank those who have taken the step of signing up and contributing to OUTA on a monthly basis (at www.outa.co.za). It is only through the energy generated by funding, that we become empowered to employ the required expertise and strategies to do the work we do. Without funds, we can do little to challenge the issues at stake and we’ve come to see the amazing power of crowd-funding, (many people giving small donations each month), to energise institutions such as OUTA.
Besides the large number of individuals contributing, We are encouraged by the growing number of small, medium and larger businesses who have also taken up the call to become active members of OUTA. It is this kind of active citizenship that enables us become an effective organisation in our quest to fight for the rights of our members and society. Having said that, we are still in need of many more members and contributors to our cause.
This brings me to the exciting announcement of OUTA’s ‘E-Toll Defence Umbrella’, which you as a current contributing member benefit from (see details in this issue).
Thank you for trusting us with your donations, to make South Africa a better place.
OUTA’s e-toll Defence Umbrella
• OUTA’s expanded role as a civil action organization, has progressed towards a membership-based contribution model that sustainably facilitates a growing mandate from the public, to become an effective Civil Society instrument against not just e-tolls, but also the individuals responsible for corruption, and tax abuse in South Africa.
• The fight against tax abuse and irrational tax policy, requires the creation of operational structures with the ability to investigate, expose, and where necessary take to court the very individuals responsible for tax abuse and corruption. However these very same mechanisms of “attack” can as effectively be used in defence against unjust prosecution, and thus the introduction of OUTA’s E-toll Defence Umbrella.
• OUTA’s E-toll Defence Umbrella is aimed at supporting the vast amount of businesses and members of the public who are afraid of individual prosecution for their resistance against the unjust policy of e-tolls. It aims to defend every case of e-toll prosecution within OUTA’s membership base, and the membership model enables OUTA to concentrate its funds on specific cases if any of their members were to be prosecuted, but always on the basis that society has contributed sufficient funds to cater for such litigation costs.
• OUTA has developed a significant base of evidence that will stand up in court, and is confident in their ability to successfully defend an e-toll case, on various fronts, if one was ever summonsed to court. We know that this defence is significantly beyond the budget, time and abilities of businesses or individuals to carry if they’re individually prosecuted, unless they are assisted by an organisation such as OUTA.
• OUTA has thus geared up operationally to be able to assist individuals and businesses in their defence against individual prosecution when they fall within OUTA’s E-toll Defence Umbrella.
• To fall under the E-toll Defence Umbrella, businesses or individuals simply need to become contributing members of OUTA through either monthly or annual membership contributions for both business or individuals.
• We function on an honour-based system where financial contributions to the cause are made solely at the discretion of the member and to the value they believe they can afford (but above the administrative minimum set by the organisation). There is no upward limit to contributions, all of which go into the same pool. However, we are only able to extend these defensive capabilities to OUTA members.
As a current contributing member of OUTA you now fall under the ‘E-Toll Defence Umbrella’.
The ‘Dr Stoychev’ farce and John’s challenge to SANRAL
You may be aware of SANRAL’s recent claim of their “successful” prosecution of a so-called e-Toll evader in early September 2015. As far as we are concerned, this was a farcical claim by SANRAL, as Dr Stoyan Stoychev was actually prosecuted for driving with false license plates, which SANRAL which clearly used the opportunity to force a ‘prosecution’ and agreement to settle unpaid e-toll bills.
It was SANRAL’s production of a video on YouTube, ‘E-toll court case: The Facts’ that fuelled the fire in John Clarke’s belly, to challenge Nazir Alli and the NPA, in a YouTube clip (see here) to charge him. John says this was “Because of my first hand experience of I believe to be Sanral’s unlawful conduct in trying to coerce, co-opt and manipulate my clients on the Wild Coast, to support a shortcut over their ancestral lands. I knew that I was completely justified in exposing the hypocrisy.”
To date, John has not been charged, and since his challenge which first aired on 15th September, and given the recent judgement against Sanral on the Western Cape’s Winelands toll roads matter, the chances are now even more remote that John will have his day in court.
“This is about the rule of law, and making sure the lessons are learned to prevent such abuses of power happening in the future. The cure of Sanral’s unlawful conduct is proving very costly in cash, and very corrosive to the legitimacy of the State,” says John
The production of John’s retort to SANRAL’s Stoychev farce, produced within two days, with humble home studio setup.
Presenting OUTA’s e-Toll Journey
Every month, Wayne Duvenage is invited to present and give talks on the e-Toll saga, its most recent developments and the background to how and why the country finds itself in this stand-off between state and society. The talk has developed into a very interesting overview of the ongoing saga and includes the latest developments on the issue. The talks usually end with a lively ‘questions and answers’ session.
In September, Wayne conducted a number of these talks to differing associations, one of which was the Johannesburg Attorneys Association, who found OUTA’s explanation and interpretation of the legalities and necessities for civil disobedience very interesting.
If you would like Wayne to speak at your business or industry association function/AGM on the e-Toll saga and why it is important to make it your business, send an email to email@example.com.
City of Cape-Town’s victory over SANRAL’s bid to toll the Winelands
From the 11th to 18th August, Judges Binns-Ward and Boqwana heard arguments between the City of Cape Town and Sanral, along with the Department of Transport and other state departments, on the Government’s decision to toll the N1 and N2 freeways of the Western Cape.
The judgment delivered on 30 September 2015 was a resounding victory for the City of Cape Town and consequently, it was a damning blow to SANRAL’’ urban tolling plans for not only the Western Cape, but also the country as a whole.
Highlights of the judgement showed that the Court found the Transport Minister’s decision to declare the Western Cape’s Winland freeways as Toll Roads, was procedurally flawed, because SANRAL’s report to the Minister and the Standish report were not made available for public comment.
The court made devastating findings against Mr Nazir Alli on whether the Sanral Board had correctly been involved in making the decision before 2014, as was procedurally required of them to do. It found that Mr Alli’s averment ‘that a decision by the Board was in fact made, but that a documentary record of it cannot be found’ was rejected by the court as ‘inherently improbable’ and ‘extremely unlikely’ leading ‘irresistibly’ to ‘the conclusion that no decisions, as required by by the act (s 27-4), were taken by the Board’.
Effectively, the implication within this judgment, is that the court did not believe Mr Alli on the papers and this in itself can only be taken as an indictment on the credibility of Mr Alli’s statement in court.
The Court also found that there was insufficient information for the SANRAL Board to have made a decision (paras 191-195), and the public participation process was a sham (paras 196-198), the findings of which were incontrovertible.
The following extract from the Judgement contains the compelling findings in Paragraph 205, which reads: ‘It is clear from the discussion above that the provisions of the SANRAL Act have been ignored, or misapplied in a number of material respects. The resultant breaches of the principle of legality are stark, especially when they are considered cumulatively. It is of special concern that the nature of the unlawful conduct that has been identified in these proceedings goes in material part to a failure to give proper effect to the right of public participation. That is something that is fundamental to the effective expression of everyone’s right to administrative action that is lawful, reasonable and procedurally fair. It also a feature of the decision-making that puts it strikingly at odds with the founding values of accountability, responsiveness and openness, which are meant to underpin democratic government in this country and critically distinguish it from the authoritarian system that prevailed in the pre-constitutional era.’
Besides the above serious issues, the toll charges proposed for the Winelands project, along with the construction costs, were extremely excessive and makes the entire scheme outrageous and right for the City of Cape Town to reject. OUTA is studying the judgement in more detail and will ascertain what benefits therein can be used in the Gauteng e-Toll challenge.
OUTA has a new home
Until September 2015, OUTA has operated without formal offices since its inception in March 2012. Our numerous meetings have been held at the offices of our various members, lawyers or accountants, as we kept costs to a minimum and focussed on tackling the challenges of the e-toll saga. Most of our work required effective communication to fighting SANRAL’s regular propaganda statements, which was not difficult to do using modern technology and social media.
However, since OUTA’s decision to expand its mandate to take the fight to end e-tolls to a new and more detailed level, as well as to tackle other tax abuse and questionable policy issues, a need for a formal space to employ the people with required skills became imperative for the organisation’s success. Having found office space at a good rental rate, and received desks and chairs which were generously donated to OUTA, we are now well underway to a new level of civil action and social responsibility position landscape of South Africa.
E-Toll Regulatory Environment & Gazette Submissions
On 26th August 2015, the Department of Transport published a Gazette (#39130), calling for public comment on amendments to the Sanral act and regulations surrounding the e-toll matter. Having read the Gazette, it was plain to see that Sanral we trying to reduce their responsibilities and thereby make the onerous scheme more complicated for the road user. There were also a number of questionable discrepancies with the rights of the general consumer, let alone normal human rights and inconsistencies prevailed in the treatment between some exemption categories when compared to others.
OUTA is very aware that people do not have the time to scour through hundreds of pages of a Government Gazette, which makes for rather confusing reading most of the time. So we decided to prepare a summary of the pertinent points for the public. We then went a step further, by preparing a “ submit your comments” template, making it easier for the public to comment on the matter.
The outcome was an incredible 18,732 public submissions were made to Government through OUTA’s portal. We are also very aware that many organisations and citizens probably made their own direct submissions, and can only believe this Gazette attracted the most submissions over the past two decades of our democracy. Now, it will be up to Government to demonstrate that they have taken cognizance of these submissions, in making their decisions to finalise the details within the new regulations.
OUTA management thanks and congratulates all who took the time to participate in the Gazette submissions in September.
More about our new structures, web platform and other developments in our next edition of “Inside OUTA”.