MORE THAN 10 YEARS OF HOLDING GOVERNMENT TO ACCOUNT
Over the past decade, our organisation has grown from three volunteers to 45 full-time paid staff. We’ve changed the way Gauteng’s freeways are funded, blocked the looting of two mine rehabilitation funds and had the former chairperson of South African Airways (SAA) declared a delinquent director for life. OUTA helped block the secret Russian nuclear power deal in 2016 and opposed subsequent attempts to make a new one. We’ve produced in-depth reports on how Parliament has failed South Africa, campaigned for cleaner water and cleaner government, and collected information to help prosecutors and the State Capture Commission.
Our team has challenged electricity price increases and fuel levy increases, set up networks for water activists and civil activists, and started training citizen scientists to hold government to account on water quality matters.
We’ve been kept very busy reading whistleblower reports, media reports, government budgets, tender documents, legal papers, the #GuptaLeaks, databases and documents that government tried to hide. Our project managers and communications teams have written dozens of submissions, reports and a book.
We’ve held scores of protests on Gauteng freeway bridges and joined hands with other civil society organisations in front of courts and even Parliament.
During the last ten years, we’ve demanded transparency repeatedly, and gone to court to enforce this. When necessary, we’ve gone to court to encourage electoral reform, overturn incoherent traffic law as unconstitutional, challenge the unaffordable Karpowership deal, demand prosecution of the deputy president and stop the national state of disaster.
The team at OUTA have made a lot of noise, challenged propaganda narratives and won a number of key battles.
We’re proudly determined to promote active citizenry and we encourage the same from society at large.
Strategies for holding government to account
Over the years, we’ve developed different strategies for holding government to account.
We investigate, expose wrongdoing, call for change and, if there is no response, we may take this further.
On the e-toll front, we used a range of strategies. During 2012 and 2013, OUTA challenged the e-toll scheme directly in court. While the court did not stop the implementation of the scheme, it also did not make a decision on whether or not the scheme was lawful, leaving the way open for a collateral challenge in the future by motorists when summonsed by the South African National Roads Agency Ltd (Sanral) for unpaid e-toll bills. In October 2015, OUTA used this legal opportunity to build an E-Toll Defence Umbrella, a crowd-funded litigation process for defending the motorists who received summonses. OUTA built a legal challenge to the constitutionality of the scheme itself – the collateral challenge for all the cases – and, for each individual case, a defence based on several aspects such as the accuracy of the bills and inability of motorists to comply.
By 2019, OUTA’s lawyers were defending 2 028 cases in the high court and magistrates’ courts over e-toll bills valued at R265 million. In March 2019, Sanral’s board took a decision (we believed based on political pressure) to stop issuing summonses for unpaid e-toll debt: this action alone was a major milestone in the demise of the e-toll scheme. In October 2022, in a major victory for public protest and civil action, the government announced its decision to end the e-toll scheme as a finance mechanism for the GFIP. However, months later, the scheme still remained operational. OUTA’s defence of the e-toll cases will continue until the Department of Transport and Sanral formally gazette notices withdrawing the tolling of the Gauteng freeways.
When we expanded our mandate in 2016, we set up an internal legal department, aimed at doing as much of our legal work as possible in-house, to keep the costs down. While we still use external lawyers in our formal court challenges, this strategy has helped us make substantial savings.
We use the public participation processes in Parliament, government departments, municipalities, regulatory bodies, Chapter 9 institutions and others, submitting formal comments on matters including policy and draft laws, electricity prices, energy policy, state capture, government budgets, driving licences and traffic law. We want the public to use the public participation processes too. We’re setting up networks of activists and online networks for activists, we publish our submissions and comments on issues for others to see and perhaps take further, and we repeatedly encourage the public to inform themselves and make their own submissions.
When we started making submissions on Eskom’s electricity price increases, there were only five submissions, mostly by experts, but this has now changed to include far more public input, sometimes thousands of comments. In 2015, we explained what the Administrative Adjudication of Road Traffic Offences Act amendment was about and why we opposed it, encouraged the public to use the public participation process to comment and set up a portal for this on our website which resulted in 117 000 submissions from an engaged public. In 2016, we ran a campaign to encourage public comment on Eskom’s application to use Thyspunt as a nuclear power station site after the site applications were quietly slipped into provincial gazettes instead of the national gazette to hide them, and the National Nuclear Regulator later said it received 25 000 public comments. This is what a participatory democracy looks like.
Our campaign for better public participation now includes lobbying for civil society representation on boards and, when this representation is legally required but when a board such as the National Nuclear Regulator tries to offload the civil society representative, we oppose that.
In 2017, we set up a Parliamentary Engagement Office in Cape Town to improve our access to Parliament, engage with parliamentarians and network with other civil society organisations on matters of public interest. We’ve published four annual reports on the state of Parliament, explaining how Parliament failed to block state capture and poor governance. We also wrote a book about that – Permitted Plundering: How Parliament failed South Africa – recording this lack of oversight.
We support whistleblowers and call for better protection for them. We’ve set up a secure Whispli whistleblower portal on our website for easy contact without fear of exposure, and we have used the information provided through this platform where we can. These are the brave individuals who are indispensable to defending our democracy. During 2022/23, we received 101 reports through Whispli and were able to take 14 of them further in investigations and projects.
We have made complaints to regulatory bodies about the activities of professionals linked to the state capture of state-owned entities. We have opened criminal complaints with the South African Police Services. We made submissions to formal inquiries into wrongdoing, including the South African Human Rights Commission’s investigation into the pollution of the Vaal River and the State Capture Commission, and found more willingness to listen and act. In June 2018, we submitted a complaint to the Public Protector about the South African Social Security Agency (SASSA) about bid rigging and corruption contracts, which went nowhere under Advocate Busisiwe Mkhwebane. However, four years later, in September 2022, Acting Public Protector Advocate Kholeka Gcaleka issued a report upholding our complaint and ordering SASSA to act and the Hawks to investigate. In June 2019, we made a submission to Parliament calling for an inquiry into Mkhwebane’s competence.
In 2021, we started making case referrals directly to the National Prosecuting Authority (NPA), in terms of section 27 of the National Prosecuting Authority Act, backed up by detailed reports and documents. Section 27 allows anybody to refer a suspicion of criminal activities directly to the NPA by way of a sworn affidavit via the investigating arm of the NPA, the Investigating Directorate.
We have been involved in numerous court challenges over the last decade, largely to obtain information which government departments refused to share with us, or to challenge corrupt deals or irrational decisions or policies. Our first such matter was our challenge to the e-tolls, when we sought to have this decision reviewed, in a case which was heard in the high court, the Supreme Court of Appeal and the Constitutional Court. In the E-Toll Umbrella Defence matters, we filed notices of intention to defend in every one of those 2 028 cases.
In July 2016, we filed court papers against SAA to force it to cancel the unlawful and excessively expensive arrangement of hiring BnP Capital to source funding for SAA’s debt restructuring. Then in March 2017, we set out to have Dudu Myeni, the SAA chairperson at the time, declared a delinquent director through a civil litigation process in the high court. This case took four years and resulted in a win for OUTA (and civil society) in May 2020, followed by another year of fighting Myeni’s appeal attempts which all failed.
In September 2017, we went to court and kept two mine rehabilitation funds worth about R1.75 billion out of Gupta control.
In July 2019, we intervened in a Constitutional Court case calling for electoral reform, supporting the arguments for independent candidates to be allowed to stand in national and provincial elections, which resulted in a rewrite of electoral law. Although we believe this rewrite is inadequate – we made four submissions to Parliament criticising the bill’s inadequacies – we will now see independents in their first national election in 2024.
In July 2020, we were in the high court challenging the constitutionality of the Administrative Adjudication of Road Traffic Offences (AARTO) Act and its amendment, which we won in January 2022. We are now waiting for the Constitutional Court to confirm unconstitutionality.
In August 2020, we were granted permission to intervene in the high court case which ultimately overturned the illegitimate Oilgate deal, where we called for public interest to be prioritised over corporate profits.
In April 2022, we filed a case in the high court challenging the National Energy Regulator of South Africa’s decisions to award the Karpowership generation licences, objecting to the preferential treatment for Karpowership and the secrecy over the costs, a case that still continues.
In February 2023, we filed a legal challenge against the declaration of a national state of disaster over the electricity crisis, arguing that this was a government-created 15-year crisis that could be addressed in terms of existing law. The state of disaster was subsequently withdrawn.
We believe transparency is essential to combat corruption. We demand transparency from government and have gone to court several times to enforce this. Over the years, we have filed many requests for information in terms of the Promotion of Access to Information Act (PAIA). Some of these requests resulted in the immediate handover of the information, but others met with resistance and delays, resulting in legal action. We have won access to information after court action against the Services Sector Education and Training Authority, and we are still in court in three different cases against Sanral demanding access to contracts and financial information linked to the toll concessionaires. We are considering legal action against the National Student Financial Aid Scheme over its refusal in late 2022 to provide information that could lead to charges of corruption being filed by OUTA.
In 2021, the law allowing the Information Regulator to enforce compliance with PAIA requests took effect, and we hope that this will provide an effective new channel for challenging secrecy. In January 2023, OUTA filed two complaints with the Information Regulator over the National Nuclear Regulator’s refusal to provide information requested, and we await the outcome. We trust that our direct complaints to the Information Regulator will generate faster and cheaper results than having to follow lengthy and costly court applications to enforce transparency. The PAIA law is supposed to promote transparency and enable cheap, routine access, but government officials opposed to transparency – often with access to unlimited resources at taxpayer expense – stonewall and force those with legitimate requests to resort to lengthy and expensive legal action. Even Parliament has ignored the South African Human Rights Commission’s complaints about this problem. Transparency should not be available only to those with the resources to fight for it.
We publicise what we are doing, so our supporters see how we spend the funds they give us, to highlight anti-democratic behaviour, corruption and mismanagement which thrives in darkness, and to show how we oppose this. We want South Africans to know what’s going on in their country. We talk to the media, a lot. We write statements about what we’re doing, we use social media, we send our supporters newsletters, and broadcast an online show and podcasts. Our Bridge Brigade team has held scores of banner protests on Gauteng freeway bridges, outside Parliament and outside courts. During 2022/23, we held 89 such protests, mostly on Gauteng’s freeway bridges.
We are active citizens. We want all South Africans to be active citizens too.
Read OUTA’s annual report 2022/23 here.
Why OUTA exists
South Africa is under attack by corruption, maladministration, poor governance and cronyism.
Too many of our country’s leaders and officials are distracted by greed and self-interest.
Corruption undermines the right of South Africans to decent education, employment, health, housing, water and security.
We can look away and do nothing, or take action to halt the decay.
At OUTA, we choose to act.