OUTA’s decision to appeal the e-toll judgement passed by Judge Louis Vorster on 13 December 2012 will be construed and viewed from a number of angles. Some may see this action as a blind and stupid challenge to perpetuate a lost cause. Others will view the action as being a futile challenge against the might of government who will simply wear the case down with taxpayer’s money, where only the legal fraternity stands to benefit. Many will see the appeal with hopeful relief and an attempt to buy OUTA time to find another way to challenge the e-toll debacle. 

The reality of the challenge against e-tolling, from the outset, has been one of a civil nature to ensure that legal rights of citizens to be engaged with in a proper and meaningful manner takes place, especially when decisions and new policies have a profound impact on society. This challenge has also questioned the exorbitant costs and inefficiencies of the e-toll plan by Sanral, questions that would have emanated a lot earlier and which could have impacted on the e-toll decision, had a proper and meaningful consultation process been applied in the first place. This is precisely why the Constitution and the Promotion of Administrative Justice Act exist.

OUTA (and millions of South African citizens) are firm in their belief that the public engagement process by Sanral in November 2007 was never meaningful and the judgement passed on 13 December 2012 to set aside the legal challenge was erroneous and flawed in this regard and in other respects. To now simply leave this matter unchallenged will be a gross injustice and will mean that in the future, the authorities can make decisions of significant societal impact, without the need for effective public consultation. Furthermore, the costs order against OUTA and the other applicants tips the balance further in favour of the government of the day and against the governed. Left unchallenged, this judgement simply betrays the values enshrined in our Constitution. 

When making this decision to appeal the judgement, the OUTA committee had to be convinced that the merits for the appeal were very strong. The OUTA members gain no financial or personal benefits from this legal challenge and there is no other reason to soldier on, than to protect the rights of citizens against a process and decision which has been fundamentally flawed in many respects and which has become a debacle. In the minds of OUTA’s members, they simply had no option but to appeal the decision.

OUTA’s challenge has never been that naïve to suggest that the Gauteng freeway upgrade was not required. OUTA firmly believes in the need for better roads and infrastructure to keep pace with a developing and growing society. Furthermore, all infrastructural development ultimately needs to be paid for by society. However, to introduce decisions of this nature and magnitude without the meaningful public engagement which ought to enable society to understand the full declarations and costs of the project, and to question the grossly expensive, cumbersome and inefficient processes within this particular revenue collection system, can never be justified. 

This appeal by OUTA is more than just a legal challenge. Now, more than ever before, the case has become a display and a call for civil courage. It is a call for society to stand fast in defence of their rights against a government that is not putting its people first. This courage becomes even greater against the backdrop of OUTA’s weakest position, being that of an uphill struggle to fund the exorbitant legal costs of this case, which in turn makes OUTA’s call louder than ever before, for all citizens and business leadership to exercise active citizenry and contribute toward the much-needed financial support for this important public cause. 

This is not a time to succumb to the pressures and fears of lost business opportunities that may come from taking a rightful stance that challenges the government. In any event, all contributions to OUTA’s legal funds (made through the website at www.outa.co.za), remain private and confidential. Through the National Development Plan, our government has welcomed 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. This is the time for civil courage. DM