Opinionista Wayne Duvenage 26 March 2017

Sanral’s Déjà Vu: Desperate deception, dangerous litigation

Last week, Sanral’s PR team scooped their dream newspaper headline: “Sanral wins e-toll fight”. After years of a good news drought, this was the one that Sanral believed would spur the Gauteng motoring public into queuing at e-toll centres to tag up and settle their outstanding bills. In the real world, Sanral’s so-called “precedent-setting” victory was based on a default judgment, because someone failed to respond to a summons.

The public had seen this movie before and were not impressed by Sanral’s deceptive claims of an e-toll victory. In September 2015, Sanral claimed a similar “precedent setting” e-toll victory against a certain Dr Stoyan Stoychev, who drove his car with false number plates to evade fines and e-toll invoices. This claim was denounced for the farce it was and not a blip appeared on the e-tag uptake radar screen.

As it was then, it would appear that once again the Sanral Milkman has not learned that stroking the hollow teats of the plastic goat of deception renders no milk.

The reality is that there was no e-toll fight in court for which a victory could be claimed. There was no hearing between two parties present. And no judge scribed a ruling of any kind. Sanral’s so-called “precedent-setting” victory was based on a default judgment, because someone failed to respond to a summons. This was simply a case of a court registrar ticking a few boxes, which is as precedent-setting as the Nkandla swimming pool is to the science of fire-fighting.

Sanral’s “e-toll victory” media release was nothing short of a hollow claim with a strong smell of intimidation and coercion, which most media houses barring a couple picked up and never even ran the story. A poll run on Friday by SABC’s Newsroom showed that 88% of the respondents were not fooled or impressed by Sanral’s claims. They remained defiant to the e-toll scheme.

Sanral’s e-toll quandary

What is the rationale for Sanral’s recent bout of litigious conduct and why is Sanral clinging to a failed scheme? The answer to their dilemma, while seemingly complex, is rather simple and goes somewhat along the following lines.

Three-and-a-half years into operation, the scheme has now run up a debt of around R11-billion, due to low public participation combined with an inefficient and costly collection scheme, peppered with administrative challenges. Consequently, the lucrative high interest rate bonds obtained from the PIC to pay for the upgrades are not being serviced. This sends future investors scurrying for the hills.

Sanral has only two choices available to them: Seek an alternative funding arrangement with Treasury or slug it out with society, in the hope of clawing back most of the debt.

But seeking an alternative funding arrangement with Treasury would be the death knell to the scheme. This would signal a victory by the people and that sucks when it comes to an autocratic government decision.

However, of greater concern to Sanral is that any indication of backing down on the enforcement and collection process would trigger the credit rating’s agency downgrade.

What Sanral doesn’t seem to realise is that the investor community – for whom Sanral’s “victory claim games” are often paraded – have never been convinced by the low stoop of deception antics presented from time to time. They too have seen this movie of once-off victories based on technicalities and have come to realise the lack of substance and sustainability therein.

What’s more is that Sanral’s shouts of victory and launches of new discount dispensations live on for a few days and, once exposed for what they are, only serve to tarnish what little is left of Sanral’s credibility.

Sanral’s “belief” that the Public Finance Management Act (PFMA) compels them to collect what is due to them is as shallow as a two-ringed plastic paddling pool for one-year olds. Naturally the PFMA says don’t write off what you should collect, but it also allows for representations to Treasury, with compelling reasons why outstanding debt may be written off. Such reasons for meaningful consideration might be those of: (a) the debt that is largely uncollectable; (b) getting worse every day; (c) involves extremely costly litigation over many years; (d) is driving a wedge between government and millions of its people.

For some strange reason, Sanral’s board is oblivious to the fact that ratings agencies are less impressed with organisations that bury their heads in the quicksand of inefficient collection processes that involve expensive litigation against millions of debtors, in the hope that one or two hollow victories will get the rest to come running.

The dangers of Sanral’s strategy

Sanral’s current conduct against e-toll defaulters, while permissible in law, runs the highly probable risk of causing more grief and damage than any good.

As much as I have disdain for the disingenuous conduct of Sanral’s leadership, I have sincere pity for this once proud state-owned entity that employs so many good, talented people who build good roads. The pride in their work and all the good things that Sanral stands for is being horribly tainted by the actions of a leadership that is so desperately clutching at straws to justify their defunct scheme.

What Sanral appears to ignore is that no matter how many hollow victories they claim, eventually the real defensive challenge will have to be heard in court. For only when the full arguments are presented and ventilated to a panel of judges from both sides can a meaningful judgment on the lawfulness of the scheme be ruled. Only then can an attempt to settle the impasse between the state and its people begin. This is the essence of the rule of law, which has very different outcomes to those that prevail from default judgments gained against unsuspecting members of the public.

The horrific and very possible outcome of Sanral’s current default judgment conduct is the potential closure of businesses that employ good, hard-working South Africans. This in turn may very well lead to the loss of livelihoods and jobs, the ramifications of which can lead to anxiety, depression and suicide.

Imagine then, after the damage has been done from a number of individual default judgments obtained in Sanral’s favour, that a judgment ensues from a properly defended court case and Gauteng’s e-toll scheme is ruled to be unlawful – just as it was in the Western Cape case. What messages of condolences and apologies will the Sanral Board and the Minister of Transport send to the families whose lives have been ruined as a result of their current litigious behaviour? Could they be sued? They have been warned.

Bullying tactics – a last-gasp resort for a failed scheme

Sanral’s current conduct is typical of the school-yard bully, using one’s size and might to pick on the weak. Rather than wait for the outcome of a properly defended legal case with a professional legal team crowd-funded through a formidable civil action organisation, Sanral prefers to pick its fight with individuals who, on their own, will struggle to afford the legal assistance needed to defend their rights and argue their case.

The public have seen through Sanral’s facade of hiding behind the PFMA and so-called good governance, while wasting several billions of rand through irregular expenditure, and building roads at highly inflated costs. Sanral’s disregard for the will of local communities across the country (AmaPondo, Western Cape, Gauteng and others), by forcing toll roads on the public while ignoring their constitutional rights, has given rise to a new public strength.

Ignoring the people and forcing a failed e-toll scheme through a contentious and expensive legal war will not resolve Sanral’s financial woes. Their plight will only get worse. DM

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