Unless the Opposition to Urban Tolling Alliance (Outa) returns to the Constitutional Court, the judicial attempts to fight e-tolls look spent. For the opposition (and let’s face it, does anyone but the government really support e-tolls?) it’s time to talk seriously about the mathematics of civil disobedience. Rebellion – cruising the highways like outlaws, radio turned up, wind in your hair, no e-tag on the dashboard – is the last option. It’s always been the final frontier in the battle against what many people lambast as an expensive and corrupt system that sends profits abroad.

Here are the numbers. There are about 2.5 million road users on these highways, one million of which utilise them regularly. Looking at tolling systems in Portugal and Texas, Outa chairman, Wayne Duvenage, says participation is a sliding slope.

“E-tolling requires a high degree of compliance, around 93-94%,” he said on Wednesday. Partial resistance leads to more resistance. Over dinner, stories are told of not complying, more people stop paying, and soon 20-30% of road users refuse to pay e-tolls and the system will collapse, or so argues Duvenage.

He says the South African National Roads Agency Limited (Sanral) has no idea how difficult the administrative side of e-tolls is. Non-registered users can use the highways at a higher fee. If enough non-registered users request their bills to be posted, instead of going into a Sanral centre, that alone could collapse the system, says Duvenage. Then there are other challenges. In addition to road users trying to defy the system, there’s also the problem of vehicles with fake number plates.

“It will be louder than ever before,” said Duvenage of the resistance campaign. Cosatu meets on Friday to set a date for a national day of action against e-tolls. The federation of trade unions says tolls will add to the burdens of the poor, perpetuating exclusion by denying the poor access to the best roads, and force people to use the poor public transport system.

“Stop the privatisation of our public highways! Reject user-pays for basic public services! Don’t buy e-tags! Don’t register with Sanral! Make e-tolling unworkable!” finished Cosatu spokesperson Patrick Craven’s statement on Wednesday.

The battle against e-tolls took a predictable blow on Wednesday when the Supreme Court of Appeal dismissed Outa’s application to stop the implementation of e-tolls on highways upgraded by the Gauteng Freeway Improvement Project (GFIP).

Judge Fritz Brand rejected Outa’s appeal of a North Gauteng High Court decision. The Pretoria court had dismissed the argument that the public consultation process to make e-tolls possible was not followed. Duvenage was positive the court process had helped explain e-tolls to the public, but Outa’s only reprieve on Wednesday was that the ruling requiring it to pay the legal costs of its opponents was overturned.

“This is the tale of seven toll roads around two cities in the province of Gauteng,” said Judge Brand, with a touch of the theatric. “After all is said and done, the stark reality remains that because of the delay in bringing the review application, five years had elapsed since the impugned decisions were taken, and that, during those five years, things have happened that cannot be undone.” In his judgment, Brand said the GFIP upgrades “by all accounts are truly magnificent”.

Outa will hold a press conference today and its board must meet on Monday to decide what to do next, but Duvenage said the chances of going to the Constitutional Court were “slim”. In that case, the organisation will need to evaluate its role in any ongoing resistance campaign.

A number of its members are organisations that work with the state and may quiver at the idea of encouraging people to break the law. Outa was formed to fight the judicial fight, but along the way it has built a strong brand. The board could be reconstituted and the organisation may continue to fight e-tolls as well as work on other issues, said Duvenage.

If it continues to resist e-tolls, Outa will be joined by Cosatu and organisations like the South African Catholic Bishops Conference. The Democratic Alliance has been staunchly opposed to tolling but urging citizens to break the law might be one step too far. On Wednesday, national spokesperson and the party’s candidate for Gauteng premier, Mmusi Maimane, said you should vote DA if you want to fight e-tolls.

“If elected Gauteng Premier, I pledge to do everything possible to stop e-tolling in its tracks,” he said. “Now we must take the fight to the ballot box in 2014 and vote out the government who brought the burden of e-tolling to South Africans.”

Speaking to Talk Radio 702 on Wednesday, Sanral spokersperson Vusi Mona said Transport Minister, Dipuo Peters, would make an announcement on the implementation of the system, possibly as soon as today. After President Jacob Zuma signed the law on e-tolls recently, it’s up to Peters to approve the final plan. Mona said Sanral was ready to deal with any sort of defiance. “We cannot run a serious constitutional democracy if we are to choose which laws to obey and which to defy. I would expect the likes of Cosatu, which is in an alliance with the ruling party, to obey the laws.” Anyone who doesn’t pay their e-toll bill faces a fine, may be added to the debt register, and possibly get a criminal record if they don’t pay their fines.

“We are confident that the laws of this country on the enforcement side are sufficient to make this project work. We do hope we don’t have to come to a point where people are forced to comply with the law; it’s not worth it,” said Mona.

If you want to continue fighting e-tolls, you’ll need to challenge that assertion. Cosatu and Outa have been steadfast in their belief that if enough people reject the system its administration will not be able to cope with the work that goes into holding transgressors accountable. Sanral is determined to implement e-tolls and it has the pressure of the state and the reputation of its leaders spurring it on.

If the public unites, it may bring the system down. But will enough people join the resistance or will Duvenage, Craven and a few of their buddies be the only ones driving tag-less, having made a false calculation of the public outrage and its ability to translate into defiance? We’ll soon find out. DM

Photo: The freedom to roam may soon be lost, forever. (A still from Easy Rider)