First things first: the citizens have to be considered, and that’s the most central issue in this fight. During the appeal application hearing on Friday 25 January (and in court prior to this recent occasion), the question was again presented: “With the freeway upgrade already complete, what can OUTA possibly achieve buy seeking to have e-tolling being declared as illegal?” 

The simple answer is that OUTA seeks not to ‘unscramble’ the roads (they are now there and needed to be upgraded anyway) but rather to ensure the rightful opportunity to gather input through meaningful public engagement process is applied. This process, in turn, will allow society – if done properly – the ability to impact the decision, so as to ensure the most efficient processes with minimal costs are implemented.

This is precisely why public consultation is so clearly warranted by our Constitution and the Promotion of Administrative Justice Act (PAJA).  Had transparent and meaningful public engagement occurred in the first place (2007), SANRAL would have had the benefit of providing valuable feedback from society to the minister of transport for consideration when making the decision. This may have included feedback such as:-

• Input from the public as to what level of tolling costs would be acceptable to a society under pressure from rising costs (even at that time).
• Input from business, fleet owners and the public as to how cumbersome, complicated and inefficient the planned system would be to manage, reconcile, query, administer and pay.
• Concerns about license-plate cloning and the requirement for efficient dispute resolution mechanisms that ought to be acceptable and in place before the process could go ahead.
• Concerns about the enforcement and policing mechanisms being planned, along with the high levels of non-compliance expected by a society which sadly has a history of working around these systems. To what extent are compliant citizens expected to subsidise the non-compliant users?
• Questions and concerns about who will be exempt from the scheme. The notion that taxis are proposed for exemption on the grounds that they “transport the poor”, could have initiated discussion on the need to define and classify “poor” in this context, so as to include the many poor commuters who are fortunate enough to own a car.
• Questions could have been raised about the costs related to the toll collection process, seeking commitments from SANRAL to ensure these do not exceed between 5 and 10% of the total costs, as is the case with efficient e-toll systems in other areas of the world.  Higher toll costs could have elicited debate for more efficient mechanisms (general taxes, fuel levies etc.) to fund this upgrade and thereby lessen the burdens related to tolling.
• Questions from society could be answered about whether e-tolling should significantly reduce after the capital costs of the road were paid up, with lower rates applied thereafter for maintenance expenses only.
• Concerns could have been raised by society about the lack of alternative routes, especially during peak traffic periods which hold them captive to the planned tolled routes.
• Concerns from society would have been raised about the inadequacies of public transport as an alternative to private vehicle use on highways and that possibly, less capital should have been be allocated to the road upgrade, whilst diverting some to the pressing public transport needs.
• Possibly a request by society for SANRAL to seek a commitment to curtailing the expensive capital costs related to such an upgrade program, which was put down at R6,8 billion for the 185 km upgrade in 2006.  Unfortunately, this price tag soared to over R17 billion by 2011 – a nearly 300% increase in five years.

From the above points, one is able to appreciate why meaningful public engagement is an absolute necessity.  Even at this late stage, OUTA’s court challenge seeks to have almost every point mentioned above brought into play, should courts be convinced to rule the current e-toll plan as unlawful.  Society still can, at this late stage, have the ability to impact on the decision, to change the system and to “lighten the load” on the Gauteng road user.

So is government deaf to its citizens’ cries? Why don’t the authorities want to hear the views of their citizens – or do they regard them as mere subjects, here to be bullied and exploited at the cost of their constitutional rights and scolded should they dare to challenge them, not least of all in court?  During the three open public engagements in November 2012, the authorities were told in no uncertain terms what the public thought of their e-toll plans. The department of transport also received several thousand written submissions to their request for public comment on the tariffs and exemptions – astronomically greater than the 28 responses SANRAL received during their “tick the box” public engagement process in November 2007.  Why could they not see this at the time – or was it a case of “did not want to see”?

Our recently launched National Development Plan advocates active citizenry, as does our Constitution.  Yet when the society expresses its concern over instances of poor public engagement, they are ignored, , of course, when citizens are forced to take their frustrations to court, or choose to exercise civil disobedience in order to be heard.  This is when government wonders why society behaves as it does, scolding its subjects and leaning heavily on those businesses who oppose them. 

History will show, time and again, the authorities tend to get their way with business (almost every time) – a case of “business being too busy tendering to make the rope to hang themselves with”, as Hugh Glenister puts it.  Citizens, on the other hand, in the shape of communities and strength in numbers, appear to get their own way through civil disobedience, forcing the authorities to back-track on poorly conceived ideas without their people on board (the latest case being the Sasolburg municipal merger plans). So it can be implied that the authorities and leadership are the advocates of civil disobedience, by the mere nature of their behavior in dealing with active citizenry.  

Will our government ever acknowledge that criticism is good and challenges brought against them (even if in the courts), should at least have the right to be heard and certainly never be impeded, unless unlawfully conducted? That, we don’t know.

Another critical factor in the struggle for active citizenry will be determined by the involvement of big business. Could 2013 be the year that Big Business displays civil courage? Will big business and industry leadership in South Africa become brave and stand strong within their industry associations, to let government know that it has had enough of its bullying tactics, enough of its shocking track record of wasteful expenditure, enough of a lost generation of scholars robbed of a decent education, enough of a lack of will to meaningfully tackle corruption and enough of holding back this magnificent country with great potential to take its rightful place as the highest economic growth and most prosperous of nations on the African continent?  Again, time will tell. But we have our hopes.

And so it is to the second highest court in the land that OUTA will go, knowing it has the heavy challenge to raise the required funds to pay its legal bills, while its opponents have access to the coffers of society at its side, and a big “Government Spend Whip” to crack onto the backs of business when it is tempted to oppose their desired plans.

Looking forward only, OUTA’s quest is to seek justice for that which is has no option but to defend.  Comforted by the fact that it has the support of over 90% of South African citizens who are able to express an opinion on the matter, and that it has raised over R8 million in what is probably the biggest public-funded court challenge since our new democracy, OUTA believes society will continue to rise to its defence and donate the remaining R4 million to reach the R11,8 million target.

OUTA soldiers on, trusting that 2013 will be the year of civil courage; a year when staff and members of big business will start to ask the hard “active citizenry” questions of their leaders and place pressure on their respective organisations to play a greater role in looking after their future. It’s a goal worth striving for, wouldn’t you say? DM