One lesson that this disastrous example of executive action has taught us is how easily one policy decision can lead us to some detrimental consequences. This goes far beyond public participation. It speaks to the very heart of direct participation in an open, democratic society by way of referendums.
If there is one theme that appears to be common to the multitude of civil, legal and political commentary on e-tolls, it is that if the policy of urban tolling (e-tolls) had been abandoned in the conceptual phase, then we would not be in the difficult position that we are in today. I believe that this is a fundamental flaw in our democratic process.
In the case of Gauteng’s e-tolls, SANRAL initially followed a notice and comment procedure on the decision to declare Gauteng’s freeways toll roads. The proposal was advertised in regional newspapers and the Government Gazette and SANRAL received 82 written responses.
That’s 82 responses out of a population of over 12 million South Africans, just in Gauteng. But even if every person in Gauteng had responded negatively to the declaration, then the declaration would still have gone ahead. According to the Constitutional Court, this is because “the duty of determining how public resources are to be drawn upon and re-ordered lies in the heartland of Executive Government function and domain”.
In other words, government, as the elected representative(s), has the final say when it comes to policy and how to spend resources. I think that this is an important aspect of governance but I don’t believe it can be considered an absolute philosophy in the context of our Constitutional democracy. Government is neither all-knowing nor all-powerful. Government may not always know the full consequences or impact of every decision that it makes. And while representation is important, there is an apparent need for certain policy decisions to be put directly to the people who will be affected by that policy.
I believe that the issue of absolute government decision-making is tempered in two ways: strong state institutions and the possibility of direct participation by way of referendum. In respect of referendums, the Constitution makes provision for either the president (in respect of a national referendum) or a premier (in respect of provincial referendum) to call for a referendum in terms of an Act of Parliament. Twenty years into our democracy and no such Act exists. I am of the opinion that this effectively denies citizens the opportunity to directly participate in important decisions which affect them.
Our law allows for referendums. But since there is no empowering law governing how, if or when to hold a referendum, South Africans are currently being denied any opportunity to participate in executive policy decisions, particularly policies that are unjust and incite public outrage such as e-tolls. I would not even consider an election as an appropriate proxy for direct participation since South Africans vote for one party with many different policy proposals. A voter may not necessarily agree with every policy put forward by the party for which they voted. Therefore, the only option left to protest an unjust policy is through civil disobedience.
I consider referendums to be an important facet of any democracy. It provides the most direct and upfront method to test significant matters such as electoral reform, important constitutional amendments, or even e-tolls. Providing for referendums is also an important step in fostering an active citizenry as called for in the National Development Plan.
Although there are advantages and disadvantages to referendums, I think that these can be properly balanced in the enacting legislation. Regardless, it is unacceptable that our Constitution provides for direct participation through referendums but the requisite legislation to do so is missing.
I believe that it is time for referendums to become part of our law in a clear and accessible manner through the proper enabling legislation. Through e-tolls we have seen the necessity for direct participation on singular policy decisions and we now have the opportunity to improve and expand our democratic processes. I think that referendums can provide such a safety net. By doing so, we can ensure that voters have a voice on important policy decisions and ensure that South Africans are not blind-sided by e-tolls again. DM
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