This public communication is prompted by Monday’s ruling in the Supreme Court of Appeal, which has lifted the veil of secrecy on court papers that Sanral’s CEO Nazir Alli believes should be kept out the public eye. It is written as an open letter, because my Opposition To Urban Tolling Alliance colleagues and I have recently and privately communicated with the authorities at these high levels, on more than one occasion, about our concerns on matters pertaining to Sanral’s leadership. We have yet to receive feedback to our questions and concerns raised.  

The purpose of this letter is simply to motivate why we believe that tough action is required to ensure that Sanral’s CEO, Mr Nazir Alli, be called to answer to mounting concerns and recent evidence which warrants urgent attention. Failing satisfactory answers and new action, the current office of the Sanral CEO will only serve to place the organisation at greater risk of further credit rating downgrades and embarrassment, due to Sanral’s continual lack of transparency and accountability. 

The evidence we offer is taken from court judgments and hearings over recent years, which display a pattern of behavior that has become progressively more removed from what the constitution obliges in terms of the basic values and principles governing public administration.

June 2006: Judge Phineas Mojapelo, Deputy Judge President of South Gauteng High Court, in a judgment concerning charges laid against an Mpumalanga farmer Nicolaas Smit who refused to pay toll at the Nkomati toll plaza, because of Sanral’s failure to meaningfully consult beforehand, reflects: “Mr Alli gave a somewhat long response at a public meeting on the toll gate consultation, which eventually came down to this:  ‘No, you cannot talk to us any further, the positions [of the toll plazas] are cast in stone (Alli).’  A group of sixteen people walked out in disgust at his ‘intransigent attitude’ and subsequently issued a media release condemning the ‘lack of transparency in dealing with this matter’ saying that it was ‘totally meaningless to invite the public to a consultative meeting’ if decisions had already been made [page 42 -44]”. 

Judge Mojapelo also devoted considerable detail to giving legal definition to consultation. Mr Smit was acquitted on all sixteen counts. Nazir Alli has never shown any acknowledgement of what the Court defined. 

Clause 195 (1) (e) of the Constitution states: People’s needs must be responded to, and the public must be encouraged to participate in policy-making.

7 February 2011: In a judgment on the matter between HMKL 3 Investments (PTY) Ltd (Applicant) and SANRAL (1st Respondent), Acting Judge Bam ruled in favour of the applicant, who had made several attempts to have Sanral relocate the e-Toll Gantry (Indlazi) situated on the N1 North in Centurion, as it was obscuring a billboard.

In his judgment, when considering the provisions of the National Environmental Management Act (NEMA) regarding the impact of the toll gantry on the environment, Judge Bam ruled that “[31] SANRAL’s failure in this regard is clearly a non-compliance with a material issue and requirement of natural justice which amounts to an irregularity.” Further on, Judge Bam records: “[36]. Regarding the requisites for an interim interdict I am accordingly persuaded that the applicant: [36.1] has established a prima facie right in that SANRAL on the probabilities, did not comply with the provisions of section 27(4) of the Act before the declaration of section 21 of the N1 as a toll road. It was further established that SANRAL failed to comply with the provisions of section 2 and 3 of PAJA [Promotion of Administrative Justice Act]. [36.2] has established that it would suffer irreparable harm. In this regard it must be kept in mind that the applicant runs a business venture on its property…In this regard the balance of convenience favours the applicant.”

Clause 195 (1) (c) of the Constitution states: Public administration must be development-oriented.

January 2013 to date – Lack of clarity on action against collusive construction companies. Despite the issuance of certificates by the Competition Commissioner in early 2013, Sanral has been remiss and reluctant to openly explain their intended actions to retrieve the overcharged funds from numerous companies who participated in tender collusion and price fixing.

Furthermore, OUTA’s research which contains input from a qualified and highly experienced road engineer indicates that the construction costs of the Gauteng Freeway Improvement Project should not have exceeded R10,8 billion. In this regard, it would appear that society has been overcharged for the freeway upgrade by roughly 66%, which is a gross violation of the people’s rights, under the nose of Sanral, the very entity that ought to have protected the public from such abuse.

Section 195 (1) (f) of the Constitution states Public administration must be accountable.

23 January 2015 – N2 Wild Coast Toll Road. The North Gauteng High Court has yet to hear the review application brought by residents affected by the N2 shortcut along the wild coast.  On top of the voluminous bundles of court papers is an affidavit from a local community leader, Ms Nomvelwana Mlengena, who alleges that her identity had been fraudulently used in another deposition in the bundle attached to an affidavit sworn by Nazir Alli, which he claims “proves” that she is in favour of Sanral’s scheme. Mr Alli also claims that her attorney Cormac Cullinan has no mandate to represent her. Should there be truth in these claims, one shudders to think of the consequences of Mr Alli’s actions in this regard.

Section 195 (1) (a) of the Constitution states: A high standard of professional ethics must be promoted and maintained.

30 March 2015. In the SCA judgment that lifted the veil on the Cape Winelands project, Judge Ponnan quotes directly from Nazir Alli’s affidavit in which he motivated for certain documents to be kept confidential. This is what Nazir Alli stated about two categories of documents that he believes should be kept confidential:

“The first category documentation and information must be kept confidential, as the failure to do so will simply cause unjustified and unnecessary concern among the general public, and will result in unjustified antagonism and bias toward SANRAL by the general public…” 

Alli explains further: “the second category of documentation and information ought to be kept confidential, as the failure to do so will not only cause harm and damage to SANRAL, but also to the bidders in the tender process, the South African fiscus and economy and the general public.  In addition, the disclosure of such information and documentation will fall foul of SANRAL’s statutory obligations.”   

Given that the documents also allege that Mr Alli seemingly decided himself to declare the relevant Western Cape roads as toll roads and never formally obtained a required board resolution, his statements above display rank hypocrisy. Former board members of Sanral have spoken to OUTA to relate their own experiences of having been sidelined from key decision making processes after they questioned Mr Alli’s judgment on major policy issues and his interpretation of statutory obligations.

Section 195 (1) (d) of the Constitution states: Services must be provided impartially, fairly, equitably and without bias.

Section 195 (1) (f) states: Public administration must be accountable.

The above fragments, from dense volumes of legal papers, when pieced together do not need much scrutiny or analysis for the point to be made, being that Section 195 in Chapter 10 of the country’s Constitution is unambiguous on the values and principles expected of state-owned entities. And I haven’t even raised the matter of the gross failure of Gauteng’s e-toll scheme in this letter, a situation which must largely be laid at the feet of Sanral’s CEO, Mr Alli himself.

OUTA has repeatedly called for an impartial team of specialists to conduct a social audit of Sanral’s performance measured against the nine principles and values of Section 195. We have no desire to see another state-owned enterprise slip more deeply into crisis. Prompt and decisive action is required. We believe the authorities need to urgently deal with Sanral’s leadership issues, in order to turn Sanral around, before it is too late, so that it can once again discharge its public mandate with greater efficiency. 

However there is more at stake here than Sanral.  The issues raised by Judge Ponnan in Monday’s SCA judgment go to the very heart and purpose of public accountability and the character of our democracy. To spare Mr Alli further embarrassment, and in the light of the SCA judgment and Judge Ponnan’s extremely thorough legal assessment of Sanral’s absurd reasoning, we wish to publicly call for his immediate retirement, so that the proposed social audit can proceed without his interference in that process.

There is sufficient research which points to the dangers of a leader left in charge for too long, especially when that organisation begins to slide from one crisis to the next. This call is not a case of playing the man instead of the ball, but rather, it’s about retiring a captain whose game plan has long since missed the mark of the team’s desired performance. The signs are eminently clear from both within and without, that “you can’t leave those who created the problem, in charge of the solution”, as the late labor leader and activist Tyree Scott once said.

Following 17 years at the helm, Mr Alli’s successes have enabled him to fly high enough to stay beyond reach of those who have wished to bring him down to earth. And whilst Sanral has delivered good roads under Mr Alli’s tenure, I believe that Mr Alli’s wings of wax are now melting. He is heading for a fall and for the sake of South Africa and Sanral, it is time for him to go. DM