Opinionista Wayne Duvenage 14 July 2014

Will Makhura’s e-toll panel suffice?

Premier David Makhura’s ten – soon to be fifteen – person e-toll review panel announced last week certainly seems to have the intellectual capital to turn the e-toll ‘lemon’ into lemonade. Chaired by Professor Muxo Nkondo, former Vice Chancellor of the University of Venda, with a mix of specialists, if it fails to satisfy, it won’t be for want of expertise or numbers.

One wonders, however, if the Nkondo Review Panel will come to realise that the e-tolling decision was a bad one, devoid of rationality and prudence, giving rise to a disturbing question which remains beyond the Term of Reference of the review panel: Why on earth was the absurdly risky decision taken in the first place?

Makhura assured journalists that the review would be ‘evidence based’. However, its remit is confined to the socio-economic and environmental impact and one imagines that evidence, which talks to the irrationality or possible unlawfulness of the e-tolling decision, will not be admissible. The panel is not a judicial commission of inquiry. There are some within the ranks of senior, honest members of the ruling party who are fed up with the betrayal of the ANC’s traditional values over the past decade, and have whispered for OUTA to push for an independent judicial inquiry.

Instead it seems the judiciary will once again have to be stretched to indulge Sanral’s avowed intent to prosecute motorists for non-payment of e-tolls. OUTA would prefer to be talking rather than fighting, but not unless Sanral or the Department of Transport signifies a desire to do so, lest we give up and not finish the job we started; to seek a definitive ruling on the lawfulness or otherwise of the original e-toll decision.

Accordingly, in light of Sanral’s pending plans to prosecute innocent motorists, OUTA has launched their ‘Rule of Law’ campaign, so that arguments presented at the 2012 interdict will finally be brought as a defence when Sanral tries to prosecute motorists who believe the e-tolling decision to be unlawful. The very existence now of a new panel to receive submissions from the public about e-tolling is testament to the reasons why a meaningful consultation processes ought to have happened before the Minister declared the freeways to be ‘pay-ways’, and before contracts were signed to erect costly, techno-complex superstructures to extract funds from society for a road upgrade.

OUTA maintains that it is disingenuous for Sanral to claim they merely implement government policy, when it was Sanral who were the architects of the scheme and impacted on the need and desire for the e-toll policy implementation. It was Sanral who commissioned the research and sold the plan to Cabinet, whist excluding important elements such as consultation, the exorbitant cost of toll collection and efficient alternative options so dearly required of the process. It was Sanral who then proceeded to sign the deals and seemingly placed their bets on the apathy of society, who have (until now) had a tendency to moan and groan but eventually, it was believed, would step in line. And if they didn’t, a massive advertising campaign commissioned by Sanral was supposed to help the defiant to change their minds, failing which additional carrots mixed with coercive and threatening tactics were meant to do the trick. Well, what now of Sanral’s plan, which has turned into a big mess for the new Premier to clean up?

Will the absence of a “user say” process back in 2007 be salvaged by Premier Makhura’s panel today? Some will say better late than never, but as is so often the case, these sessions become a damage control strategy after the horse has bolted, with ToRs that exclude the many factors that ought to have been taken into account when it mattered most. Nevertheless, even though the knock of opportunity is late, it is one OUTA and others will grasp with both hands, whilst keeping their eyes on the need to bring closure on the unlawful e-tolling declaration, or until government halts the e-toll plan with a solution of best outcome for society. This we trust will come from the Makhura intervention.

The technicalities over condoning the lateness of OUTA’s earlier legal applications (which apply in administrative law) do not apply in criminal law. This means that when Sanral (or the NPA) prosecutes motorists and businesses for non-compliance, OUTA will aim for its arguments to be heard and thrashed out in front of a higher court. This is not about a panel of experts debating, but a bench of judges who will be presiding over legal arguments of whether there is proof beyond reasonable doubt that the accused committed a criminal act in defiance of a lawful decision. The ramifications for the individuals concerned will be far-reaching, yes, but the ramifications for the rule of law in society will be immense.

Fortunately, OUTA’s challenge against e-tolling has been applied at several angles, from the initial legal interdict of the scheme’s launch in April 2012 to the ongoing questioning and exposure of Sanral’s claims and propaganda, to lodging a comprehensive complaint with the Office of the Public Protector. This work, combined with the voices of reason and rejection of e-tolls by COSATU, the Faith Based Movements, business forums and other institutions, have added to a rising level of public civil courage, resulting in a successful and wide-spread defiance campaign. Today, some seven months after the launch of the scheme, fewer people are paying their e-toll bills than those who are not – a big fail for any ‘user pays’ scheme.

But for now, it’s the Gauteng Premier’s panel that will assess the impact tolls has on his province, a matter which in itself lends reason for the Parliamentary tagging of the e-Toll bill to be done at a provincial rather than a national level. With several months of (overwhelmingly bitter) experience since the launch of the fiasco, will the panel’s ToR prevent them from assessing and comparing Sanral’s ideological theories and models that gave rise to the decision to toll, to what has actually transpired? Will the panel ask Sanral to explain in detail their 8,4:1 cost to benefit ratio which played a big part of their reasoning to proceed and then compare this to what has actually transpired since the completion of the GFIP?

In February this year, OUTA published a comprehensive position paper – which included the input and experiences from academics, to other countries who had used electronic tolling, to transport economists and journalists – seeking to put brain and reason above emotion and rhetoric. OUTA looked at various international attempts where ‘Intelligent Transport Systems’ (ITS) had been both experienced successful and unsuccessful introductions. From this work, they distilled eight criteria that seemed to be critical for those that succeeded, and conversely, an explanation for those that failed. Gauteng’s e-tolling scheme fails to tick the box on every single count. The paper was published on OUTA’s website in February 2014, inviting both critical comments and searching questions. The only criticism received was defensive anger from certain economists whose claims and assumptions in support of e-tolling that were interrogated in the paper.

One might even argue that the Board of Sanral failed in their fiduciary duty to manage risk by interrogating the proposals from the CEO and his operational team. OUTA’s research into international examples begs the question: Did Sanral’s own internationally based research take cognizance of the single biggest and obvious requirement for the success of an e-tolling scheme – a committed consent and acceptance by the people? It is also interesting to note that Sanral was warned of this important issue by their own advisors; however, it would appear their contemptuous attitude and arrogance has blinded them to rights of the very people they rely on to make the system work.

From OUTA’s perspective, it remains to be seen if the Gauteng premier’s panel will bring a close to this gruelling battle. While we certainly hope so, the OUTA committee remains adamant that it is not going away until the rationality and lawfulness of the decision to e-toll the GFIP is unpacked. Ultimately, OUTA has one strong desire, to work itself out of a job that it started and bring closure to this matter, but that time has not yet arrived. It is, however, a sad reality that OUTA’s ability to do its work could very well be cut short, if indeed the financial support and donations from donor agencies, business and the public do not transpire.

Unlike Sanral and other state bodies whose challenges from society are often triumphed through a war of attrition, using taxpayers money to fund their massive marketing, propaganda and legal campaigns, OUTA relies on active citizenry and donations from the very people whose side of the story needs to be heard.

It would be an immense pity to see this civil action body cut short of its work in holding government accountable to the people and to expose the numerous shortcomings that have been evident along the way. DM

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