Following the decision taken by OUTA’s representatives on 7 January 2013, to proceed with an application to seek leave to appeal the high court judgement, OUTA’s application which contains the reasons and grounds for the appeal was lodged on Tuesday 8th January 2013. A copy of the application document is available on their web site at www.outa.co.za.
In short, OUTA has not taken this decision to appeal the judgement lightly. Its supporters firmly believe that that the grounds and merits of this appeal are very strong and that leaving the judgement unchallenged will set a significantly erroneous precedent which effectively allows the governing authorities to implement policies of significant impact on society, without the need to conduct meaningful public participation, as is required and enshrined in our constitution.
The constitutional interpretation of Section 27 of the SANRAL Act requires that SANRAL should have given adequate notice to the public of the proposed project and tolls and that meaningful public participation was required to be undertaken. Public participation requires that sufficient information about the project must be provided to the wide and substantively (the eToll declaration, the tariffs etc), such those impacted are empowered with knowledge and time to have the ability, if so required, to exert a possible effect on the outcome of the decision. In SANRAL’s case of eTolling public participation process, this was not possible, yet the court ruled that SANRAL’s “tick-box” opinion of their public engagement process was sufficient and adequate. In this regard, OUTA maintains that procedural and objective fairness has not been applied, making e-Tolling’s introduction unlawful.
The Judgement also erroneously relied on a minority judgement from the in the constitutional court ruling and thereby misrepresents and ignores crucial aspects of OUTA’s case in Part B of the application (the review). This misinterpretation of the constitutional court judgement had the effect of setting aside OUTA’s argument that the Minister of Transport’s decision was irrational because his approval was conducted without knowledge of eToll collection costs.
OUTA’s decision to appeal the judgement is more than just a legal challenge. The appeal is a display and a call for civil courage. It is a call for society to stand fast in defense of their rights against a government that is not putting its people first in this instance. This is not a time to succumb to the pressures and fears of reprisals which may come from taking a rightful stance that challenge against government. Besides, all contributions to OUTA’s legal funds at (via their web site www.outa.co.za), remain private and confidential. Furthermore, the Government’s launch of the National Development Plan welcomes and encourages all to become active citizens and to challenge the authorities when society has strong grounds and reasons to do so.
This is a time for active citizenry, for active corporate participation. Now is the time for civil courage and we call on the public and business in particular to assist OUTA by contributing to the high legal costs incurred.
Enquiries: Wayne Duvenage