Opinionista Wayne Duvenage 20 October 2013

eTolls: Ostrich head, tarmac, deep

There is a fine line between sheer ignorance and blind arrogance, a situation displayed recently in comments made by representatives from the Department of Transport and Sanral, who stated that people opposing eTolls were in the minority and that most people were in favour of the system. I can only guess this is what ostrich-like obstinacy looks like, when the facts and examples in real life defy the logic of such blinkered commentary.

Members of a powerful faith-based delegation who recently met with the deputy president and his entourage, were also subjected to this ‘minority opposition’ opinion, wherein the authorities stated that apart from OUTA’s members, COSATU and the DA, there was little other opposition to the decision to toll Gauteng’s freeways. Once again I was reminded how an undiscerning belief in a situation can drown out reality, like the cries of a spoilt child can destroy the music of [societys] choir in full crescendo.

In fact it is the ‘pro-toll’ grouping of the ANC, Sanral and some of their allies and business groupings (probably mostly those who supply them with services), who occupy the lighter side of the scale. One only has to read the responses to media statements, YouTube clips and snap electronic surveys on the subject of eTolling, to realise how massive the anti-eToll lobby is. It surely outnumbers those in favour of the scheme by a ratio no less than 95:5.

The most obvious way to measure public opinion on a topic of such socio- economic importance would be to conduct a regional referendum. But dare they? I guess that would be tantamount to shooting themselves in the foot or adding copious quantities of fuel to the fire of their already overheated kitchen of cooked-up conspiracies. One can only assume that leaders who believe such drivel are either not receiving sound input and research from their advisors, or they don’t read the same media as the public who pay their salaries.

No matter how the authorities want to spin the story, the citizens of Gauteng were failed by the state with a meaningless and dismal public participation process, prior to the Minister declaring the Gauteng freeway system to be tolled highways, the sole purpose of which is to prevent what is happening today, an outrage and uproar by society of proportions unseen in decades.

Behind the bravado and threats, many a concerned leader rightly ponders on how things will play out once eTolls are forced into being. The notion that the middle-class is meek and will fall into line at Sanral’s Customer Service Centers is now in doubt, as signs of the country’s first sizable tax revolt in our new democracy begins to loom.

Sanral’s spin doctors have already fumbled over fictitious eTag sales figures, trying to paint a picture of a society clamoring to get into their doors to purchase eTags and despite a multi-million rand marketing campaign, the people have stayed away. Still the ostriches repeat their mantra to their questioning leaders: “Don’t worry, the public will come”. Of course, under duress, some will get eTagged, but just as many won’t, enough to test the system’s survival. One thing is for sure, it’s going to be a messy and highly conflicted process.

As Sanral nears its year-end launch (predicted to be missed once again), we now expect a lot of talk about massively improved eTag sales, with pictures of (rent a crowd) people queuing in their kiosks. In reality, though, they will remain blind to the fact that their plan has gone beyond the ability to attract the overwhelming buy-in of society, and forging ahead against this backdrop could indeed be calamitous.

Realising they face a massive problem with the enforcement of eToll payments, Sanral have now requested that “special eToll courts” be introduced to prosecute e-toll defaulters under the criminal procedures act, all of it in the country that is struggling to prosecute rapists, murderers and child molesters. But this is not so easy to do. The budget and approvals for such a request are massive and ultimately, the government needs to ask of itself: do we really want to heap more policing, administration and a new court system into society when we ought to have moved away from this authoritarian, politburo style of leadership? Over time, forced participation never succeeds. It’s a willing and committed participation they ought to be seeking.

OUTA’s decision not to appeal the Supreme Court (SCA) judgment was a necessary and calculated one. The judgment, whilst ruling against OUTA, has neither agreed nor disagreed with their application on the key substantive points around the lawfulness of the scheme. Instead, the ruling has ‘kicked the matter into touch’ for another day, by ruling that OUTA was out of time in bringing its legal challenge, effectively halting OUTA’s challenge on a technical basis. The chances of a last bash in the Constitutional Court revealing a similar technical fate was high in this specific ‘administrative law-based’ legal challenge. In addition, OUTA’s funding shortage was too big to overcome, so the decision to change tack was not difficult to arrive at.

Some have commented that OUTA should have pulled out earlier, but when one unpacks the order of the events, OUTA had no option but to come this far. Firstly, they successfully achieved the interdict, halting the launch of eTolls in April 2012, in a two part application: Part A being the urgent temporary interdict (which was set aside in September the same year) and part B, the review, which was lost on a shocking judgment in December 2012. More shocking in that judgment was the costs order slapped onto OUTA, which was a strong reason for their need to appeal and which they duly succeeded in having reversed in the SCA.

By not addressing the arguments on lawfulness, the courts have effectively allowed Sanral to proceed (on a technicality) and reap the fruits of their own alleged deception. This alleged deception will eventually be argued in a court of law, using OUTA’s findings and affidavits in a collateral challenge, the minute anyone is summonsed to appear in court for non-payment of eTolls. When this happens under the Criminal Procedures Act, the technicalities of delay (which were applied under administrative law in the review) are removed and the issues of a grossly failed public engagement process, combined with the lack of consideration of the costs of eTolling by the Minister of Transport when approving the scheme, plus other factors revealed during OUTA’s legal challenge, will come into play.

OUTA now contemplates a different tack on a new playing field, one that will be closer to the people on the ground. One that will share information and expose a myriad of the eToll system’s weaknesses. One that will coordinate and enhance civil courage and active citizenry, being the ultimate challenge against the survival of any system or policy implemented against the will of the people.

The intention for OUTA’s planned future and drive will now adopt strategies similar to those displayed by other successful civil action movements, such as the Treatment Action Campaign and Section 27, as it seeks not to interfere with government’s right to govern or make policy, but rather, insisting that SANRAL and government conduct themselves lawfully, constitutionally and in the best interests of the people. DM


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